Justice: Indeterminate Sentences
Lord McNally Excerpts(12 years, 1 month ago)
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Lord Lloyd of Berwick
To ask Her Majesty’s Government what action they plan to take following the decision by the European Court of Human Rights on 18 September in the case of James v UK that the detention of prisoners serving an Indeterminate Sentence for Public Protection beyond their tariff without access to parole is a breach of their rights under Article 5(1) of the European Convention on Human Rights.
The Minister of State, Ministry of Justice (Lord McNally)
My Lords, the Government are still considering whether to appeal against this decision. The Government have three months from the date of the judgment to submit an application to the Grand Chamber which will effectively be appealing the decision.
Lord Lloyd of Berwick
My Lords, the noble Lord will know the figures because he was kind enough to give them to me last night. There are currently 6,000 people serving IPP sentences, 3,500 of whom have already passed their tariff date and are currently waiting to appear before the Parole Board. Of those 3,500, 2,000 have been waiting for more than two years and 350 have been waiting for more than four years. The court has held in no uncertain terms that their detention in these circumstances is arbitrary and therefore unlawful. Does the noble Lord recognise the scale of this continuing disaster? Does he accept that the Government must do something now to get these wretched people out of prison?
Lord McNally
My Lords, the Government have done something. IPPs were abolished by the LASPO Act, but unwinding the system has to be done very carefully. We are not talking about people who are innocent, but people who have been sentenced for long periods for serious crimes. The IPP system was introduced by the previous Government with, I think, a genuine intent to deal with this problem. We are bringing in a more flexible approach and we have both the Parole Board and NOMS working closely on it. However, it is not simply a matter of throwing open the gates of the prison because in some cases we are dealing with very dangerous people, so we must have public protection in mind when deciding how to deal with them.
Lord Wigley
My Lords, does the Minister accept that there could well be implications arising from the James case for the 3,500 prisoners who have passed their tariff that could lead to them claiming compensation against the Government either under tort or under Section 8 of the 1998 Act? In those circumstances, do the Government accept that they may have to pay compensation?
Lord McNally
One of the reasons why we are studying the judgment is to make sure that we get this right. There are three very early cases which go back to before the reforms brought in by the previous Administration in 2008 in order to bring in more flexibility. It is interesting to note that the court did not find that IPPs themselves were in breach of the Human Rights Act. The weakness that quickly became apparent was the Catch 22 whereby the prisoners were supposed to carry out certain restorative and rehabilitative programmes that were not available. After 2008, the Government brought in some reforms and we have had further discussions with the Parole Board and NOMS to try to speed them up. But I emphasise again that we are not dealing with innocent people. These are people who have been before a court and found guilty of the crimes which have brought forward this programme. We are trying to manage them out of the system as quickly as possible, but with due care for public safety.
Lord Marks of Henley-on-Thames
My Lords, one of the main grounds for the judgment against the United Kingdom was that there are, as my noble friend has said, insufficient facilities for courses to enable prisoners serving IPP sentences to qualify for release. Can the Minister say what extra rehabilitation facilities are now to be put in place to ensure that such prisoners can be released safely and quickly into the community?
Lord McNally
My Lords, one of the things that we have been discussing with both NOMS and the Parole Board is moving away from a system of box-ticking specific narrow training programmes to a more flexible judgment about whether a particular prisoner is suitable for release. Giving both NOMS and the Parole Board greater flexibility in treating, assessing and managing these prisoners will enable the Parole Board to make a balanced judgment, at the right time, about whether these prisoners should be released.
Lord Dubs
My Lords, does the Minister agree that when these sentences were first brought in, nobody expected that they would apply to more than a very small number of exceptional cases? Since then, they have been used on a wide scale. Does that not cast doubt on the propriety of keeping these people in jail beyond the sentences they would otherwise have had?
Lord McNally
Whether there was a misjudgment or not when IPPs were brought in, the fact is that we have reached the figure that the noble and learned Lord quoted of 6,000, which is far more than was anticipated by the initiators of the Bill. However, we now have to go through a proper process of assessing whether these prisoners, who have been sentenced for serious crimes, are fit for release, always keeping in mind public safety as well as the progress they have made. We have taken on board the fact that, as it was, the system was too rigid and too tick-box and we have given it greater flexibility. However, we have to manage release into the community; we cannot just open the prison doors.
Lord Faulks
My Lords, the decision in the James case was another reversal by the European court of decisions about our domestic legislation reached by the Court of Appeal and the House of Lords. Does the Minister agree that, despite the Brighton declaration, there seems to be very little sign of the European court affording us the margin of appreciation that it is supposed to do? In the light of this case, and another recent case that would have attracted the House’s attention, is it not time to consider cutting the links with Strasbourg?
Lord McNally
I would very much regret that. We get enormous benefits from being part of a wider regime of human rights. However, I am equally proud of the reforms that were brought through by the Brighton declaration. I would also say that we have not exhausted the Strasbourg system with this case and are considering whether to appeal. As I reminded the noble and learned Lord, the actual judgment was a very narrow one that did not disown IPPs or say that they breached the Human Rights Act.
Crime and Courts Bill [HL]
Lord McNally Excerpts(12 years, 1 month ago)
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Lord Rosser
My Lords, my Amendment 2 is designed to find out rather more about the reasons behind the Government’s thinking and how paragraph 2 of Schedule 16 is to be interpreted. The schedule clearly states that where a court makes a community order that must include,
“at least one requirement imposed for the purpose of punishment, or … a fine”
unless there are exceptional circumstances. The Government have decided that there will be exceptional circumstances in around 5% of cases. It is not clear why the Government are going down this road. Their own impact assessment refers to research that has been undertaken by the Ministry of Justice, as I understand it. The impact assessment states:
“Offenders who receive supervision, punitive requirement (unpaid work or curfew) and a programme requirement were less likely to re-offend and committed fewer re-offences within a 2 year period of the community order, compared to those who receive supervision and a punitive requirement”.
It then goes on to say:
“There was no impact on re-offending of adding a punitive requirement to certain other specified combinations of requirements”.
Finally it says:
“Adding supervision to a standalone punitive requirement reduces re-offending”.
Most people would regard those statements as not exactly a ringing endorsement of the value of a punitive requirement. Further on in their own impact assessment, the Government come out with this statement:
“The Government considers that community orders are currently not sufficiently demanding for offenders”.
Is that all of them? All community orders are not sufficiently demanding? If that is the case, then what do the Government intend to do to make all community orders more demanding, since that does not seem to be referred to in any documentation? I hope the Minister will tell us whether that statement in the impact assessment represents the Government’s view when they say:
“The Government considers that community orders are currently not sufficiently demanding for offenders”.
It does not say some of them. It does not say the third that do not include the punitive element. It just says they are not sufficiently demanding for offenders. The Minister will, no doubt, respond to that point and tell us how the Government intend to make the community orders sufficiently demanding in their view.
It says further on—in paragraph 37 if the Minister is interested—in the impact assessment, which is, as I understand it, the Government’s own document:
“Given the need for community orders to remain proportionate to the offence committed, delivering a clear punitive element to every community order may, in some cases, cause certain requirements to be substituted by punitive ones. The research that we have undertaken does not tell us about the impact on re-offending of replacing requirements with more punitive ones”.
In other words, the Government do not know what the implications of their proposal will be for rehabilitation. Yet they are still proceeding. There is no other interpretation that can be put on that extract from the Government’s own impact assessment.
We have previously raised the issue of the victim surcharge and I would like to talk a little about that. The victim surcharge is for offences committed on or after 1 October this year—the beginning of last month. It will be, with no apparent exceptions, £60 where a community order is given as a sentence to an adult offender. Since for offences committed before 1 October this year there was no requirement to include a victim surcharge where the sentence was a community order, will the victim surcharge of £60—which I believe is now mandatory with a community order—be regarded as the equivalent of a fine, as referred to in proposed new subsection (2A) in paragraph 2 of Schedule 16? If it is, we need not concern ourselves much more with this part of Schedule 16, since every community order will automatically include what is, in effect, a fine, albeit called a victim surcharge, and meet the requirement to include at least one requirement imposed for the purpose of punishment or the imposition of a fine.
If the new £60 victim surcharge for an adult offender, and £15 for a youth offender, which has, I think, just been made mandatory where a community order is imposed, is not to be regarded as a fine under proposed new subsection (2A) in paragraph 2 of Schedule 16, then why not? From the point of view of the offender, the effect is still the same whether it is a £60 fine or a £60 victim surcharge. They still have to pay the money or run the distinct risk of more severe action being taken, including the possible loss of liberty. This £60 victim surcharge is a new penalty to be paid by the offender, since it applies only to offences committed since the beginning of last month. It was not in existence at the time the Bill was being drafted. Has the victim surcharge of £60 to be imposed where there is a community order changed the situation and if not why, why not?
We have a situation at the moment under the Bill where presumably the court, with a so-called non-punishment community order, could levy a very small fine of, say, £15, because of the financial circumstances of the offender. That fine would be deemed to be the equivalent of a punishment under proposed new subsection (2A). The court would then have to impose a victim surcharge of £60—some four times higher than the £15 fine, which could cause the offender much greater difficulty in terms of payment. However, that would not be deemed a punishment under the terms of the proposed new subsection. That does not appear to make a lot of sense or have much logic behind it.
The wording of our amendment, which substitutes “may” for “must” would, among other things, enable the court to decide that the £60 victim surcharge, which is payable when a community order is handed down as the sentence, was sufficient as a punishment element, and the court would not also be required to include either a fine or a further requirement imposed for the purpose of punishment, as currently appears to be the case under proposed new subsection (2A).
I do not intend to go over other points. They have been eloquently made, and repetition would achieve nothing. I look forward to hearing the Minister’s response to all the points raised and questions asked in this debate.
The Minister of State, Ministry of Justice (Lord McNally)
My Lords, it seems a long time since I was looking forward to us reaching this part of the Bill, where, as noble Lords will recall, we slightly bent the rules—goodness knows what they are now—to allow for Clause 23 to bring in rehabilitation proposals. Of course, in a debate in which a former president of the Supreme Court, a former Lord Chief Justice, a former president of the Family Division and a former Her Majesty’s Inspector of Prisons give their opinions, I listen—as I indeed listened to the noble Baronesses, Lady Howe, Lady Hamwee and Lady Linklater, the noble Lord, Lord Carlile, and particularly the noble Lord, Lord Elystan-Morgan. We had a very interesting discussion about the relationship and power of Parliament and the judiciary. I look forward to reading the noble Lord’s memoirs, which I notice have just been published in Welsh. Have they been published in English? I do not know.
Lord McNally
They are on my Christmas list.
The proposal of the noble Lord, Lord Ramsbotham, is a nuclear option, which I will address in my remarks. However, I will start by reassuring noble Lords that the Government fully recognise the point that underpins many of these amendments and agree that offenders who receive community orders are a diverse group, with wide-ranging characteristics and individual circumstances. For example, such offenders are more likely than the general population to have a disability, to come from low-income households or to receive work-related benefits. Many other examples were brought out in detail by the practitioners who responded to our public consultation on these proposals.
It is clearly vital that community orders take into account these diverse needs. We cannot have a one-size-fits-all approach to non-custodial sentences. At the same time, we also need to recognise that community orders cannot focus only on the reoffending needs of the offender. Many who receive community orders have committed not inconsequential offences. The sort of offences for which sentencing guidelines suggest community orders would be appropriate include actual bodily harm, thefts in the hundreds or low thousands of pounds and first-time domestic burglaries.
While it is critical to address the causes of such offending, it is legitimate to expect such behaviour to face punishment. It is clear that fines and custodial sentences provide punishment for an offender; but at the moment it is possible for a community order to be based solely on addressing the offending needs of an individual offender. Our argument is that, by including the punishment element, we will win the vital public confidence for the holistic response that is at the heart of our proposals: the rehabilitation of offenders.
Our provisions seek to balance the purpose of punishment with ensuring that the courts retain flexibility to tailor community orders around offenders’ circumstances. To that end, I remind noble Lords that we have already amended our original consultation proposal that courts should be required to include specified elements, such as community payback or a curfew requirement, in every community order. Practitioners were clear that, although some community order requirements such as curfews or unpaid work were more often likely to represent a punishment than others, in the right circumstances—this comment has been made by a number of noble Lords—all the existing 12 community order requirements could potentially be punitive for a particular offender. That is why Part 1 of Schedule 16 gives the courts the flexibility to choose which requirement would be a proportionate and appropriate punishment for an individual offender.
Lord Rosser
The noble Lord said that the surcharge was not a fine. Will he confirm that it has to be paid? What happens if it is not paid? Will he confirm that action will be taken, just as it would be with a fine?
Lord McNally
Yes, that is exactly the case. However, I also said that the court would be able to use discretion about the circumstances of the individual.
Lord Rosser
In 95% of cases it will not, because the Government have already decided that “exceptional circumstances” will apply to only 5% of cases.
Lord McNally
I would be interested to know where the Opposition stand on two things. First, with the victim surcharge we intend to raise considerable amounts of money from offenders that will go to victims. I presume that the Opposition are in favour of that. Secondly, we are determined to pursue offenders. I know that, particularly in this House, we always hear about the hard cases—but far too many people who offend and are given fines then do not pay them. We intend to pursue them and make sure that they do pay them.
Lord Rosser
We are certainly quite happy for people who do not pay fines to be pursued. I do not know why the Minister raised the issue of what the Opposition think of the victim surcharge. We have never voiced opposition to it. I think that he raised that issue in order to dodge the very direct question that I asked when I put it to him that the victim surcharge is very similar to a fine for the offender. They have got to pay it and if they do not they will be in the same kind of trouble as they would be if they did not pay a fine. The Minister raised the issue of the victim surcharge simply to avoid answering the very direct question that he was asked.
Lord McNally
I was asked a direct question and I gave a direct answer. The victim surcharge will be in place, but it is not a fine. That is what the noble Lord asked and that is what I answered. Now I ask the noble Lord, Lord Ramsbotham, to withdraw his amendment.
Lord Ramsbotham
My Lords, I thank all those who made such powerful contributions to this very interesting and wide-ranging debate. Although I say “wide-ranging”, there was no doubt in my mind that everyone was focused on the primary issue throughout, and covered various aspects of it.
The Minister mentioned that the public sought confidence in the system. Confidence comes from proof that things work. What worried me in all the contributions that were made was that they disclosed vast gaps in things being carried out that have been put to the public as being matters in which they can have confidence. Too much is not proven and not known at present.
I will ask the Minister two questions. First, when can I expect a reply to my letter of 4 October to the Secretary of State, asking for a meeting on this? I have not even had a reply. I would like a meeting because, like many noble Lords, I am functioning slightly in the dark. The Secretary of State is an éminence grise and it would be enormously helpful to find out from him exactly what he feels and thinks.
Secondly, I hope that between now and Report it may be possible to have a meeting and a briefing about this so that we can get to the bottom of some of the issues that have been raised. I do not think that this is an appropriate time to test the opinion of the House. Therefore, I beg leave to withdraw the amendment.
Baroness Hamwee
My Lords, the noble and learned Lord’s amendment goes to the heart of the issue. It would be ironical if what he is seeking to avoid were in fact to come about since all this should be about preventing reoffending. My Amendment 11 provides that none of this should affect the provisions of Section 142 of the Criminal Justice Act 2003, which sets out the purposes of sentencing. I realise that it would have been better drafting if I had just referred to Section 142(1), but never mind; one can come back to that at a later stage.
I am seeking to ensure that we do not impose a hierarchy of purposes and that we leave punishment where it is as one of five principles. I am sure that the Minister understands that this is the quite simple purpose of this amendment. I hope that he can reassure the Committee that nothing here seeks to alter in any way those well established five equal partners in principle.
Lord McNally
I thank noble Lords for their contributions. Let us be clear: of course the five principles are intact but, as the noble Lord, Lord Elystan-Morgan, queried earlier, why bring legislation if we do not intend to change things? We do intend to change things. The whole thrust of what we are trying to do is to use community sentencing effectively, couple it with a real drive on rehabilitation, and also—and we think we have public support in this—use the element of punishment to drive home both the rehabilitation message and the punishment message.
Part of that has come out in our debates. There are noble Lords who believe that “exceptional” covers around a third of offenders. That is exactly the problem we are trying to address because the idea that somehow a third of offenders cannot be punished is what undermines public confidence. That is why we are making the point that exceptional circumstances apply to a very narrow group and that it is possible to put a punishment element into a much wider range of sentences while giving the court the flexibility to take account of the circumstances of the person before it. However, as I said in the earlier debate, we are going to resist those who want to amend the Bill so that there is a three-lane highway of exceptions from what we are trying to do.
Amendments 3, 3A and 8 focus on ensuring that the courts,
“have regard to the need to promote rehabilitation”,
and that punishment is not imposed at the expense of rehabilitation. Amendment 9 looks at the detail of what requirements might constitute punishment for an offender, and finally, Amendment 11 looks at the impact of the changes on the purposes of sentencing as set out in Section 142 of the Criminal Justice Act 2003. On the issues raised by the first three amendments in this group, I am happy to reassure the Committee that it is not the Government’s intention that any of these provisions should jeopardise the prospect of rehabilitation for offenders. In fact, as the noble Lord, Lord Rosser, said, I have already made the point a number of times that I am proud that the amendments we will be debating place rehabilitation so firmly on the agenda—and I keep on reinforcing what has been commended by the Prime Minister as part of this thrust of criminal justice reform.
Lord Woolf
Will the Minister forgive me if I ask him to indicate whether he thinks there cannot be a situation where a judge might conclude that the effectiveness of what is proposed by the Government might reduce the effectiveness of the order to prevent reoffending? If that is the judge’s conclusion with regard to the proposed new provision, does the noble Lord think that the judge should have an escape hatch?
Lord McNally
Yes, of course, judicial discretion should remain. But what I do not want to do from this Dispatch Box is give the impression that on the one hand we are saying down the corridor and on public platforms that we are going to make punishment a key part of giving credibility to community sentences, and that on the other hand the House of Lords is giving a nudge and a wink that actually the judiciary can do what it wants. That would be wrong. I hope that a learned judge, on seeing an exceptional case that needs that kind of judgment, would exercise that judgment. But I hope also that judges will see it as exceptional and not applying to a third of the cases before them. I hope that that is a sufficient assurance for the noble and learned Lord.
Community orders can, in the right circumstances, be highly effective at tackling the causes of offending. The Government are very clear that we need to build on the reductions in reoffending rates in recent years. That is why the Government are proposing to retain Section 148(2)(a) of the Criminal Justice Act 2003, which provides that the requirement or requirements imposed as part of a community order should be those that are, in the court’s opinion, most suitable for that offender. That should provide reassurance on the point that the noble and learned Lord, Lord Woolf, has just made. I would also draw noble Lords’ attention to Section 177(6) of the Criminal Justice Act 2003, which requires courts to consider, when imposing two or more community order requirements, whether they are compatible with each other given the circumstances of the case. Again, the Government do not intend to change that requirement.
In short, these provisions will not prevent courts from imposing requirements that are focused on the offender’s rehabilitation or from imposing a combination of requirements that is most suited to the offender’s needs. While accepting the spirit in which Amendments 3 and 8 have been tabled, I believe that existing statutory frameworks already provide adequate safeguards.
Amendment 3A would change the nature of the punitive element provision so that the courts would be required only to impose a requirement that delivers both punishment and rehabilitation. It is of course true that many of the community order requirements can deliver two or more of the purposes of sentencing. If a court wishes to impose a sentence that delivers both punishment and rehabilitation, choosing a single requirement that delivers both is one possible option—but so is combining a punitive requirement with an additional requirement, ensuring, of course, that the total weight of the sentence is proportionate to the seriousness of the offence.
The noble Lord, Lord Rosser, made a specific query about the example I gave. In theory, a single requirement, activity or programme along the lines that we talked about could fulfil this duty if a court felt it was appropriate for that particular offender. However, there will also be occasions where the court may decide that a purely or primarily punitive requirement is an appropriate response to a particular offence. We would not wish courts’ discretion to be limited so that they are required to impose both punishment and rehabilitation in cases where they do not believe both are necessary. However, as I previously stated, the Government firmly believe that all community sentences, bar in exceptional circumstances, should contain a punitive element. For this reason, while I entirely accept the point that punishment may often support rehabilitation, I do not believe that this amendment is desirable.
Turning to Amendment 9, a number of noble Lords have asked, both in Committee on 30 October and in today’s debate, which community order requirements courts could impose to fulfil this duty. I refer noble Lords back to the responses we received to our consultation on this issue. Practitioners were clear that, in the right circumstances, all 12 existing community order requirements could be punitive for a particular offender. The Government recognise the force of this argument. The courts are best placed to decide, on a case-by-case basis, what is punitive for a particular offender. That is why the Bill is drafted to give courts the flexibility to impose any community order requirement to fulfil the duty to include a punitive element, so long as they can be confident, on the evidence before them, that the requirement will genuinely prove to be punitive for that offender.
Of course, in practice, there are some community order requirements which courts are likely to make more use of than others. Again, this was a point that sentencers and those working with offenders made very clear in the consultation response. The consensus was that certain requirements, for the majority of offenders, are more likely to be punitive than others. The requirements they most commonly mentioned were curfews, other restrictions on liberty such as exclusion or prohibited activities, and unpaid work. That is why the Government would expect to see an increase in the use of such requirements if this provision is enacted. However, the Bill leaves it open to the courts to decide to impose other types of requirements if they believe, in the circumstances of a particular case, that this would fulfil the purposes of punishment.
Finally, turning to Amendment 11—
Lord Clinton-Davis
The noble Lord referred to other provisions. Would he define what he means?
Lord McNally
It is difficult. I do not know at what time the noble Lord joined our debate.
Lord Clinton-Davis
The noble Lord referred to other provisions which could be made by the judiciary in relation to Amendment 9.
Lord Ponsonby of Shulbrede
Yes, I was going to help the noble Lord. There are nine listed in that list whereas there are 12 possible as part of the community order. Maybe that is what the noble Lord, Lord Clinton-Davis, meant: the additional three that are not listed.
Lord McNally
I will take that lifeline gratefully, but if there are other matters I will write to the noble Lord. I still cannot find the exact line.
It was requirements other than unpaid work, curfews or exclusions. I am now back on track. That takes us back to the point—we are now going full circle. Obviously, the concept of punishment is more likely to mean curfews, unpaid work, exclusions et cetera but, as we discussed earlier, it may be that there are other impositions which, for that particular offender, would be seen as a punishment. The court would have that flexibility to so define them. I hope that helps and I am sorry that I lost the thread. I am assured that I am on page 8. These notes are extremely useful.
I apologise to the noble Lord, Lord Clinton-Davis, for implying that he had not been an assiduous attendee. That was cheap. He asked a good question and I hope that I have now clarified it.
The point was that I was referring to the research that we had done. The consensus was that for the majority of offenders certain requirements are likely to be more punitive than others. As I said, the requirements they most commonly mentioned were curfews, other restrictions on liberty such as exclusion or prohibited activities, and unpaid work. That is why the Government expect to see an increase in those measures.
Finally, on Amendment 11, I am happy to reassure noble Lords that it is not the Government’s intention to detract from the court’s existing obligation to have regard to the five purposes of sentencing currently set out in Section 142(1) of the Criminal Justice Act 2003. If these provisions are agreed by both Houses, courts will continue to be required to have regard to all five purposes, whether that is punishment, rehabilitation, reparation, and so on. It will continue to be a matter for courts as to what weight they place on each requirement when sentencing a particular offender.
I remind noble Lords, though, that some purposes are likely to be more relevant than others for particular sentencing powers. For example, courts’ powers to discharge offenders absolutely or conditionally are predicated on the assumption that, in the circumstances of the case, it is inexpedient to inflict punishment. Similarly, while a fine can punish and deter an offender, it may do little towards the purpose of public protection. At the other end of the scale, I am sure that noble Lords will agree that for any offender, the deprivation of liberty that results from an immediate custodial sentence remains and represents a punishment.
In these examples, the nature of the sentence being considered may draw courts’ attention to some purposes of sentencing over others, but courts are still bound to weigh the relevance of all five purposes of sentencing. The same is true of these provisions. While courts will be required to determine whether the circumstances of the offence and the offender justify imposing a requirement for the purpose of punishment, they will still have to weigh this against the relevance of other purposes when determining the overall sentence. Nothing in this requirement prevents a court imposing a single requirement that fulfils multiple purposes of sentencing or imposing multiple requirements to meet multiple purposes.
I hope I have been able to reassure the noble Lord, Lord Rosser. I will of course read these debates carefully. I hope that noble Lords will read them, too, because they will find a recurring theme of flexibility and trust in the judiciary and its judgment which should deflect some of the worst fears that have been expressed about our intentions. Our intention is to carry forward a rehabilitation revolution and put effective community sentencing at the heart of that. I fully appreciate that this House, particularly in these two debates, has done its proper job of fine-toothed combing what we propose and seeking assurances about our intentions. I hope that, on reflection, noble Lords will feel that, as it will work and with the flexibility we are building in, some of their concerns are not justified. I hope that the noble Lord will withdraw his amendment.
Baroness Hamwee
My Lords, can my noble friend go just slightly further into Section 142? I indicated I had realised that my drafting was not what it should have been. I have only just realised that Section 142(2) says that subsection (1), which is the five principles, does not apply,
“to an offence the sentence for which is fixed by law”.
My concern is that the punitive elements imposed by the new schedule might be construed as being fixed by law and therefore override subsection (1).
My noble friend has been very good in not yet teasing me about the fact that all the arguments I made about punitive elements could be made against me on the issue of rehabilitation because they are within this schedule as well. The arguments could go both ways. I have asked my noble friend a pretty technical question that I wanted to get on the record. He seems to be getting some advice but if he feels that this needs to wait, I would be happy to do so. It is not fair of me to have bowled him so big a googly.
Lord McNally
I shall simply blame my Box advisers if there was an opportunity to tease my noble friend which they did not draw to my attention. Perhaps there will be opportunity when we get to Report. I am always in awe of the assiduity with which my noble friend approaches her task. I will have a look at the point that she has made in the cold light of Hansard. The hot message from the Box is that the punitive element will not be a sentence fixed by law, but if there is any reason to clarify or modify that, I will write to my noble friend and make the letter available to the rest of the Committee.
Lord Rosser
My Lords, the Minister expressed the hope that we would read the debate carefully. I would have thought he accepted that I read them carefully—I have managed to quote from his speeches repeatedly. Quoting back at him precisely what he said is the strongest part of my case. I appreciate that in the light of the Minister’s explanation every other Member of your Lordships’ House may be completely clear, but there is one Member who is certainly not clear. As I understand it, the Minister has accepted that the case he referred to—that of a person who never got up in his life before noon might classify learning to read and write as a punishment and therefore a requirement to take a course developing reading and writing skills being put in a community order—could be regarded as a punishment under the terms of this Bill. I think that is what the Minister said when he responded to that specific question. Perhaps he would confirm that.
Lord McNally
Yes. The noble Lord seems to be having difficulty. Yes, if the person turns up and learns to read and write, that is a good bargain. We are trying to get rid of the community sentence that suggests that someone clears up rubbish, but after two days he does not turn up and nobody follows it up. The only thing that happens—as I mentioned to the noble Lord, Lord Reid, in the last debate—is that the offender takes the orange jacket to wear as a fashion item at the Saturday night dance. It is that contempt for community sentencing that we are trying to get rid of, but I have no trouble with the illustration that the noble Lord gives, as long as the punishment or the purpose is followed through. The noble Lord knows the problem of illiteracy. If we can build into community sentencing a real sentence with teeth which makes particularly young offenders learn to read and write, it could be a turning point in their lives. The noble Lord does not set me any kind of difficult question by asking for that clarification, as long as the community sentence is effective.
Lord Rosser
The Minister is confusing two things. We are dealing with part of the schedule that refers to a requirement that would be regarded as a punishment. It has been defined elsewhere as, for example, a curfew, unpaid work or an exclusion. The Minister has now agreed—and it is presumably now on the record—that this could be extended to include the case of somebody given a requirement to learn to read and write, and that that could be regarded as a punishment. What the noble Lord then went on to say has nothing whatever to do with the part of the schedule that we are discussing, but with his concerns about people given a punishment. He quoted unpaid work, because he referred to picking up litter or something. That is unpaid work, which is defined as a punishment even in the noble Lord’s definition. However, making sure that it is carried out is totally different from what we are talking about in this part of the schedule. So I do not know why the noble Lord brought that in as an answer to my point.
He says that sentencers will have a degree of flexibility. If that is the case, why did he not accept the earlier amendments to change the word “exceptional”, in one case to “particular” and in another to “specified”? He would not move on that, yet now says, for example, that the kind of programme he referred to could be regarded as a punishment. I do not know why he is not prepared to accept Amendment 9 because it says,
“a punishment requirement may include”,
and it refers to “an accredited programme”. Of course, the answer is that the key thing the Minister has not budged on when he seeks to say that the sentencers will have discretion, is that 95% of cases will be regarded as the norm and will have the punishment element. The Minister will still put on a limit and say that only 5% should be regarded as exceptional. If he was prepared to accept Amendment 9, he would remove any doubt about that and back up his statement that a court may be able to take a view that a community order—for example, a requirement to take a course developing reading and writing skills—was sufficient and could be regarded as a punishment.
However, the guidance that the courts will get on sentencing from the pre-sentence report will be based on what the Government, through NOMS, want to tell the probation service. Clearly the probation service will be told that only in exceptional circumstances can a community order not recommend unpaid work, a curfew or an exclusion. To come back to what the Minister quoted, the ability of a court to decide on a community order that requires developing reading and writing skills is going to be very limited, despite what the Minister said about the sentencers having discretion. The significance of the fact that the Minister was not prepared to accept either amendment to change the guidelines to “particular” or “specified” gave the game away.
The Minister wants it both ways. He wants to stand at the Dispatch Box and say that accredited programmes could be regarded as a punishment and give the impression that sentencers will have a lot of discretion, when we know that they will not. On the other hand, he wants to make sure that exceptional circumstances really are very exceptional indeed. I have been asked to decide whether to withdraw the amendment. Of course, I beg leave to withdraw the amendment.
Baroness Hamwee
My Lords, I shall also speak to Amendment 10. This can be brief, because I think the Minister has already pretty much given me what I sought. Amendment 7 provides that before any of the new requirements are included in an order, the court must consider whether it is compatible with other requirements that it is thinking about imposing as part of a community order. I took this from Section 177(6) of the Criminal Justice Act 2003, to which the Minister has already referred, and I think he has given me the acknowledgment I want. However, he will understand that I want to ensure that the punitive element is compatible with other elements of the sentence and does not undermine or negate them. As I have indicated, one might argue the same about the rehabilitative elements, but I am focused on the punitive.
Amendment 10 refers to the provision in the Coroners and Justice Act about sentencing guidelines. Section 120 provides for sentencing guidelines about certain matters and makes special arrangements for the guidelines that fall within, I think, subsection (3), including publication in draft of the guidelines and consultation, with specific consultees. In this amendment, I seek to add these new elements to that rather short list. I tabled this amendment in my name and that of my noble friend Lady Linklater before seeing the Minister’s letter following our previous debate on the Bill. I understand that he intends to explore the sentencing guidelines with the Sentencing Council, which probably gives me as much as I can expect at this stage. I beg to move.
Lord McNally
My Lords, I had a witty response for the noble Lord, Lord Rosser, but it will have to wait. My best responses usually come about halfway home when I think, “Damn”.
This group of amendments looks at how the provisions relating to a mandatory punitive element will sit alongside existing features of the sentencing framework. Amendment 7 would require courts to consider, before imposing an element that meets the purpose of punishing an offender, whether that requirement is compatible with any other requirement that the court wishes to impose as part of the overall community order. I am happy to give an assurance that it is not the Government’s intention that these provisions result in a combination of community order requirements that are manifestly unsuitable for addressing the causes of an individual’s offending. It is clearly right that where a court imposes two or more requirements in combination, those requirements should complement each other rather than cut across each other.
That is why the Government propose to retain Section 148(2)(a) of the Criminal Justice Act 2003, which provides that the “requirement or requirements” imposed as part of a community order should be those that are, in the court’s opinion, “most suitable for” that offender. I should make it clear that, as a result of these provisions, this requirement would in future be subject to the duty to impose a punitive element. However, that does not change the fact that the courts, having decided on a punitive element, will still have to ensure that, if it is combined with another requirement, that combination is the most suitable for the offender before them.
I would also draw noble Lords’ attention to Section 177(6) of the Criminal Justice Act 2003, which requires courts to consider, when imposing two or more community order requirements, whether they are “compatible with each other” given the circumstances of the case. Again, the Government do not intend to change that requirement. I believe that, taken together, the existing framework already provides the safeguards that my noble friend is seeking.
Amendment 10 would place an explicit duty on the Sentencing Council to prepare sentencing guidelines for courts on the execution of their duty to impose a punitive element within or alongside a community order. I fully understand the intent behind this amendment. Since its creation in 2010, the Sentencing Council has played a vital and valuable role in supporting effective and consistent sentencing by the courts. While the council is of course independent, the Government are committed to exploring with it whether the provisions in this Bill will require changes to existing sentencing guidelines. For example, the council has an existing guideline on sentencing powers in the Criminal Justice Act 2003, including community orders. The current guidelines include material defining low, medium and high intensity levels of community order.
While this and other guidelines clearly provide important guidance to the courts, I would not wish the council’s existing, wide-ranging powers to issue sentencing guidelines to become too unwieldy or complex. The current power to issue guidelines has the twin virtues of simplicity and flexibility, while allowing the Government to request that the council considers issuing guidelines on a particular topic. I am happy to make a commitment to my noble friend that the Government will discuss this and other provisions in the Bill with the Sentencing Council. I hope that, on the basis of these assurances, my noble friend will be content to withdraw her amendment.
Baroness Hamwee
My Lords, I certainly shall. I read Hansard afterwards, so I will read what the Minister said to make sure that it was as good as it sounded. I beg leave to withdraw Amendment 7.
Lord Rosser
I will be very brief and say that we support the thrust of what has been said. We will listen carefully to the Minister’s reply, particularly if the Minister feels unable to accept the amendments.
Lord McNally
My Lords, this has been an important debate. It is four-square with two instincts that I had when I came in to this job two and a half years ago and they have been reinforced by all the experiences that I have had over the past 30 months. The first relates to the point made by the noble Baroness, Lady Linklater, that women are different and need a different response from our criminal justice system. The other relates to the age group of young adult offenders—whether it is 18 to 21 or 18 to 25. Not only is that the age of a transition to adulthood; it can also be a transition to a lifetime in crime. It has struck me time and again that if only we could extend some of the lessons that we have learnt from the treatment of young offenders under the age of 18 into that age group, we might be able to have a similar impact.
One thing that is encouraging concerns my right honourable friend Chris Grayling, the new Lord Chancellor and Secretary of State for Justice. I have been impressed by the freshness of his thinking in some of these areas. It may be that, like me, he has the benefit of not being a lawyer and comes to it with a certain action-this-day, can-do approach. One thing I will accept that the noble Lord, Lord Ramsbotham, referred to earlier. I will propose to the Lord Chancellor that he comes to this end of the building and that we have a meeting. I think that it will be to our mutual benefit.
On the point about women, raised by the noble Baroness, Lady Linklater, and the noble Lord, Lord Ramsbotham, I make the point that women now have a new champion in the Ministry of Justice, Helen Grant MP. While Helen has been working her way into the job, it has caused a slight delay in the publication of the women’s strategy. She is entirely comfortable with the content and direction. As for when it will be ready, I am not sure which of the civil servants’ euphemisms I am allowed to use—before Christmas, shortly, in December—but work is well under way and she is taking a close and personal interest. I think that it will be greatly to the advantage of the priority that women are given within the Ministry of Justice that Helen is now in place. I also emphasise that, in developing that women’s strategy, we build on the work done by the noble Baroness, Lady Corston, and the template that she laid down. As with the previous Administration, there is a difficulty with resources in some of our ambitions, but that does not take away from the fact that we are looking at a real and effective strategy, building on the Corston proposals and taking them forward.
Likewise, young adult offenders are a very important group, and if we are going to succeed in a rehabilitation revolution it is in that group that we have to find our success. We must explore ideas to get effective programmes for them. I thank my noble friend Lady Linklater and the noble Lord, Lord Ramsbotham, for drawing the Committee’s attention to these important issues. This Government share their belief that it is important that the criminal justice system is properly responsive to the needs of female and young adult offenders. If we are successfully to rehabilitate both groups of offenders, it is important that we take into account the different profiles of women and young adult offenders, including the factors associated with their offending.
Lord McNally
I do not know whether I am flattered or worried about the assiduity—a world that seems to be creeping into these debates—with which the noble Lord, Lord Rosser, reads my speeches. It is more worrying when speeches of a few years back are quoted back at one and it is perhaps even worse when someone reminds one that most of the powers that we will need to reorganise the probation service were included in the 2007 Act, which, as my noble friend has pointed out, was enacted under the previous Administration.
I would like to help the noble Lord further but he is well aware that we are looking at the probation service in parallel with the other reforms that we are bringing forward. The aim of our reforms will become clear. Noble Lords will know that the provision of the probation service in England and Wales is at present under review. Earlier this year the Government published a wide-ranging consultation paper, Punishment and Reform: Effective Probation Services, setting out proposals for the future direction of probation. The Government are carefully considering the way forward in the light of the comments received and the Government’s wider approach to reforming the justice system.
A key part of these reforms will be delivering a rehabilitation revolution that reduces reoffending rates and therefore better protects the public. The Government want to see offenders, both after release from prison and on community sentences, given the support that they need to keep them on the right track, rather than simply returning to crime. The Prime Minister has made it clear that this will be an ambitious programme, using payment by results across rehabilitation services to harness a range of expertise and to strengthen our focus on outcomes. We are clear that there will continue to be a critical role for the public sector probation service as part of a reformed system. The Government are aiming to set out a vision for the future system over the next few weeks. We will want to engage with probation staff, representative groups and all those who can make a contribution to this important work.
In light of these points, I would be grateful if the noble Lord, Lord Rosser, would agree to withdraw his amendment. Work is under way; consultations are under way; and at the appropriate time we will bring forward proposals which, inevitably and quite rightly, will be subject to the scrutiny of both Houses.
Lord Rosser
I think the Minister has answered the question from the noble Baroness, Lady Hamwee. We have not heard much since the conclusion of the consultation. The Minister has made it clear that there will be a reformed system and, by saying that the Government’s ideas will be around in the next few weeks, he has indicated that your Lordships’ House will not be able to discuss the Government’s proposals on community sentencing in the light of the Government’s intention for the future of the probation service. If that is wrong and if the Minister is telling us that on Report we will know what the Government’s intentions are for the future of the probation service, I will be very happy to give way so that he can tell us that fact. He does not seem to be too keen to stand at the Dispatch Box to confirm that that information will be available for us on Report.
It is with considerable suspicion that we view this Government’s intentions for the probation service. There is clearly a move to outsource more activities. The Minister has not taken the opportunity that I have given him to stand at the Dispatch Box and tell me that I have got it all wrong and that that is not what the Government are thinking of doing. That is the answer to the question from the noble Baroness, Lady Hamwee.
Lord McNally
For the record, we are considering how to give effect to those parts of the Offender Management Act 2007 that open up provision of the probation service to a wider range of providers. In doing that, we will, of course, take a sensible and measured approach to any proposals introducing competition for offender management. Protection of the public will continue to be our top priority as we design our reforms.
Baroness Hamwee
My Lords, I would not say that the noble Lord was interrupted but an explanation has been given by the Minister. I did not expect the Minister to answer my question because it was not a question for him. It was a question about why the previous Government provided for the sort of reorganisation to which the noble Lord, Lord Rosser, referred, but did not provide for the affirmative resolution procedure. I am sure he would have said, as I have, that one needs to ensure that all legislation is proof against succeeding and different governments. The noble Lord was not part of it so perhaps I am teasing him unnecessarily.
Crime and Courts Bill [HL]
Lord McNally Excerpts(12 years, 1 month ago)
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The Minister of State, Ministry of Justice (Lord McNally)
Dear, dear, dear. I noticed that my noble friend Lord Ahmad at one point referred to the noble and learned Lord, Lord Goldsmith, as his noble and learned friend. In some ways, both Front Benches are grateful for the noble and learned Lord’s interventions and draw on his experience in this area. In that spirit, I shall take another look at both of his amendments and take advice on them.
Paragraph 5 of Schedule 17 sets out both mandatory elements that every deferred prosecution agreement must include—namely, an agreed statement of facts and an expiry date—and a number of optional elements set out as a non-exhaustive list of potential terms.
As my noble friend Lord Marks has explained, Amendments 24 to 27 would require a financial penalty to be agreed and imposed in every case; whereas, under the Government’s proposals, that is a matter to be agreed by the parties depending on the particular circumstances. The Government have taken the view that, for the purposes of this approach to dealing with alleged criminal wrongdoing by organisations, there must be flexibility to deal with each case individually. As such, our intention has been, as far as possible, to limit the mandatory elements of a deferred prosecution agreement. I defer to the noble and learned Lord, Lord Goldsmith, on whether it is a wholly new approach. As he says, there are at least some areas of our law that are pathfinders for this. However, I think that it is a new approach to economic crime.
It is important to remember that this is a voluntary process and that the outcome will be an agreement between the prosecutor and an organisation, as distinct from court-imposed sanctions. It is essential, therefore, that the parties are able to negotiate terms in an individual case that are tailored to the particular type and extent of the alleged wrongdoing, as well as to the wider circumstances of the case and the organisation, including its financial circumstances. Ultimately, the package of terms will be the subject of judicial scrutiny and the judge will consider whether, taken as a whole, they are fair, reasonable and proportionate. If the judge is not of that view, he or she will not approve the agreement.
A financial penalty is just one of the potential terms of a deferred prosecution agreement, and is one of five of the suggested terms which are monetary in nature. While the illustrative terms in paragraph 5 are not listed in order of priority, it is the view of the Government that any terms of an agreement relating to compensating or making reparation to victims should take priority over the other monetary terms, including any financial penalty. Not all of the suggested monetary terms would be appropriate or desirable in all cases. In addition to, or instead of, monetary terms, an agreement may include obligations to improve corporate governance and compliance and to provide for implementation of the agreement’s terms to be monitored, the cost of which would fall on the organisation, or indeed anything else which the parties can agree is an appropriate response to the alleged wrongdoing. It will be for the parties to negotiate, and ultimately for the courts to approve, a range of terms that are fair, reasonable and proportionate. While a financial penalty is very likely to be imposed in the majority of cases, we do not consider it necessary or desirable to require a financial penalty to be agreed and imposed in every case.
Amendment 28 concerns the level of financial penalty payable under the terms of a deferred prosecution agreement. Where such terms are to be included in an agreement, the sum payable should be broadly based on the fine that would have been imposed for the alleged offence on a conviction following a guilty plea. Where available, the court would follow relevant offence-specific sentencing guidelines, as well as guidelines on general principles of sentencing, including the reductions in sentence for a guilty plea, as the noble Lord, Lord Beecham, pointed out. When considering a financial penalty term of a DPA, it is expected that both the parties and the court would have regard to the same guidelines, as well as the balance of other monetary terms of the DPA. This is to ensure as far as possible that any financial penalty under a deferred prosecution agreement would be broadly comparable to a fine likely to be imposed by a court following a guilty plea.
The effect of Amendment 28 would be to place a cap on the maximum financial penalty that could be negotiated under a deferred prosecution agreement. Given that it will be impossible in any particular case to estimate accurately the likely fine the court would impose, it would in practice be undesirable to seek to limit the freedom of the parties to negotiate the amount of a penalty in this way. In any event, the amount arrived at will have to be agreed by both parties before seeking the court’s approval and the court would need to be satisfied that any financial penalty is fair, reasonable and proportionate, such that we do not think specific further provision is necessary. But as I said to the noble and learned Lord, Lord Goldsmith, I will look at both of his amendments.
Amendment 29 relates to the provisions we have made enabling the parties to negotiate a term specifying the consequences of non-compliance with a deferred prosecution agreement. We have included this provision as a way of dealing with non-compliance capable of being objectively determined by the parties, for example, where the organisation has made a late penalty payment. The aim is for the parties to remedy the non-compliance without recourse to the court, for example, by way of punitive interest in relation to the late payment. Such a term would be negotiated alongside all of the other terms of an agreement and approved by the judge. We do not envisage that such a term will be appropriate in all cases. Whether or not a deferred prosecution agreement includes such a term, paragraph 9 provides a formal procedure for breach and non-compliance which will be the most appropriate way for most instances of non-compliance to be dealt with.
I hope that the Committee will agree that it is desirable to ensure that agreements are tailored to individual cases, with judicial scrutiny of all of the proposed terms to ensure that they are fair, reasonable and proportionate, and that it would be inappropriate to make any of the terms of deferred prosecution agreements mandatory in all cases. And as regards setting the amount of a financial penalty term and inclusion of a consequences term, I trust that my explanation has reassured noble Lords. But I shall read in Hansard what the noble and learned Lord, Lord Goldsmith, has said, and perhaps he will look at what I have said. We can see how they match up or where we should move.
Lord Goldsmith
Perhaps I may say a sentence because it may help the noble Lord and his officials. I had in mind in Amendment 29 that the DPA should say, “And if you fail to comply with this, then the prosecution can take place and you may be proceeded against”. That is the sort of consequence I am thinking of. I understand that the noble Lord is talking about something else. So with that expansion of my meaning, I am grateful that it will be looked at again.
Lord McNally
That is extremely helpful. With my advisers, I will look at the points that the noble and learned Lord has made. We do not go behind the Chair in this House, but he knows what I mean. I shall see if we can match up. I have found his remarks very helpful.
Lord Marks of Henley-on-Thames
In relation to my amendments, I understand what the Minister has said. The only point I would make is that it is possible to take the middle position, which is really the position that the noble and learned Lord, Lord Goldsmith, has put and which my noble friend has said he will look at. As the noble and learned Lord suggests, the anomaly is where you can have an all-or-nothing financial penalty that still exists, so it must be sensible to have a variable penalty if the noble Lord does not accept my Amendment 24.
Claims Management Companies: Unwanted Text Messages
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The Minister of State, Ministry of Justice (Lord McNally)
My Lords, the Government fully support the work of the Information Commissioner’s Office in enforcing the legislation that protects individuals from unsolicited text messages. The Ministry of Justice’s claims management regulation unit is actively working with the commissioner to investigate individual claims management companies receiving leads or claims as a result of unsolicited text messages, and is taking enforcement action as appropriate.
Lord Kennedy of Southwark
My Lords, the mis-selling of payment protection insurance was an absolute scandal, but the activities of some claims management companies are also a scandal, with unwanted text messages and phone calls. Does the Minister agree that there is a serious problem with this industry? If so, what are the Government going to do about it?
Lord McNally
The Government are making sure that there are joined-up investigations, co-operation between the various bodies responsible for various aspects of the industry and carried-through enforcement action. This is feeding through into weeding out the rogue traders and making sure that the consumer has sufficient information to be able to make rational decisions as to whether they use the services offered.
Baroness Gardner of Parkes
My Lords, is the Minister aware that I have asked Questions several times of both this and the previous Government, not so much about texts but about unsolicited phone calls on exactly the same matter? I have been told that you can go on to a site and put yourself on a list, saying that you do not want to receive things. But, unfortunately, that does not really work. The latest statement that I had from the Government was that if things come through overseas channels or other satellite means, they cannot control it; they can control things only within certain parameters in this country. Is that still the case? I am getting about six phone calls a week and sometimes three or four a day, all offering me wonderful things.
Lord McNally
I have some sympathy for the point that the noble Baroness makes, because we at home are supposed to be on this blocking mechanism that you sign up for, but the calls still get through. I will investigate the point that she made about whether international calls get round the blocking. I know that Ofcom is very much aware of this problem. I know that it is no use me telling the noble Baroness that she can go on to this register and that Ofcom is on the job and so on, because from the noises around the Chamber and my own experience, I know that these nuisance calls are still getting through. I will contact Ofcom and write to the noble Baroness with the reply, which I shall put in the Library of the House.
Lord Campbell-Savours
My Lords, the Information Commissioner has received at least 10,000 complaints every year, but how many prosecutions have there been?
Lord McNally
If the noble Lord means complaints about the rogue calls, I do not know, because this Question is not about the rogue calls. In my letter, I will cover it. On the question of texts, the Information Commissioner has announced that he is preparing to levy some very heavy fines on people who abuse the system with texts. But I will make the question on unasked-for calls part of my inquiry and put the reply in the Library of the House.
Baroness Butler-Sloss
My Lords, would the Minister add e-mails? I get an enormous number of e-mails every day, generally about PPI but about a whole lot of other things, too. They all seem to be done at about three in the morning. E-mails are just as serious; I spend such a lot of time just deleting all these e-mails on a daily basis. Would the Minister add e-mails to texts and phone calls? I also get the texts and the phone calls.
Lord McNally
I agree; I know what absolute anger this matter causes. It sometimes raises a groan when Ministers announce the following, but a cross-industry working group has been set up led by the Direct Marketing Association and including the MoJ’s claims management regulator, the ICO, Ofcom, the Telephone Preference Service, the OFT and the Advertising Standards Authority. They are looking across the piece at what is undoubtedly a nuisance.
Baroness Scott of Needham Market
My Lords, I am sure the House is reassured to know that it takes so many people not to be able to do anything about this problem. Does my noble friend agree with me that the real problem here is the routine selling on of our personal data—our mobile phone numbers and our e-mail addresses—and that we might avoid this problem if we dealt with that and had severe punishments for breach of data protection?
Lord McNally
I thank my noble friend for that question. She is right. However, from April 2013, claims management companies will be banned from receiving referral fees in personal injury cases and from offering financial rewards or similar benefits as an inducement to make a claim. We are trying to make sure that we do not block legitimate activity but that we comb out and stop those who are causing a nuisance and the rogue traders. I am afraid that a number of regulators need to come together in this area to get effective action.
Lord Skelmersdale
My Lords, the Minister’s offer to put the letter in the Library is, of course, of great interest to Members of this House. However, there is much wider interest in this matter. May I encourage him to consider putting the letter in Hansard so that it can then get on to the internet and be much more widely read?
Lord McNally
I am not sure how easy it is to put it into Hansard, but what I can put into Hansard is the general advice on this matter, which is that customers should never use these firms. It is simple to make claims yourself and there is a template and letter on the Which? website. However, these claims companies have at least enabled financially less confident consumers to seek redress. I pay tribute to the noble Lord, Lord Kennedy, for his assiduity in pursuing these matters. I should also point out that the consortium of concerned bodies to which I referred has produced a very helpful pamphlet as a consumer guide entitled Nuisance Calls and Messages, which is supported by 11 bodies, which may be a clue as to why it is difficult to find a solution to this problem.
Statute Law (Repeals) Bill [HL]
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The Minister of State, Ministry of Justice (Lord McNally)
My Lords, I am pleased to bring forward this Bill, which continues to make further progress in the modernisation of the statute book by removing obsolete legislation from it. The Bill was prepared by the Law Commission and the Scottish Law Commission in fulfilment of their ongoing statutory responsibility to promote the repeal of obsolete and unnecessary laws.
Over the past 43 years the law commissions, which are independent statutory bodies set up under the Law Commissions Act 1965, have published 19 reports on statute law repeals, with draft Bills attached, that have been presented to Parliament. The 18 previous reports have resulted in the repeal of 2,300 whole Acts and the part repeal of thousands of others. The present Bill proposes the repeal of more than 800 whole Acts and the part repeal of 50 others. This makes it the largest statute law repeals Bill that the commission has ever produced.
The repeals are set out in Schedule 1 to the Bill. They are in 11 parts and cover a diverse range of subjects, from poor relief and lotteries to turnpikes and Indian railways. As always, the law commissions have uncovered areas of some historical interest and antiquity. For example, the earliest repeal is from around 1322—the exact year remains uncertain—and concerns the working of the old Exchequer Court. Other historical curiosities, no doubt important in their time, include an Act of 1696 passed to fund the rebuilding of St Paul’s cathedral after the Great Fire of 1666; an Act of 1800 to authorise the holding of a lottery for the £30,000 Pigot diamond; and 38 Acts passed to support various railway companies operating in British India and the wider East Indies. However, not all the repeals involve ancient law; the Bill includes the repeal of a number of unnecessary tax provisions, the most recent of which were enacted in only 2010.
Your Lordships will wish to know that there has been full consultation by the law commissions with interested bodies on all the proposed repeals, and there are no outstanding objections to any of them. I am sure that your Lordships will wish to join me in paying tribute to the two law commissions for their very thorough and painstaking efforts in this important work of modernising our statute book. I should also thank those who have been consulted by the commission for their contributions.
Finally, because some of the repeals relate to devolved matters in Scotland, a legislative consent Motion has been lodged in the Scottish Parliament in accordance with standard practice. If your Lordships are content with the Bill at Second Reading, it will be referred to the Joint Committee on Consolidation, a committee on which I had the honour to serve some 30 years ago. This will be considered by that committee in the usual way. I commend the Bill to the House.
Lord McNally
My Lords, I thank the noble Lord, Lord Beecham, for that response and for his ingenuity in managing to get a political point into the reply. In some ways, I am much relieved that more noble Lords did not delve into the support papers—they are absolutely fascinating. I live in St Albans where the court house Act in 1829 enabled it to build a beautiful building in St Peter’s Street, although it is no longer used as a court house. It is interesting that an Act of Parliament was needed to build it.
Another thing which caught my eye was the reference to finance Bills. There is always the complaint that such Bills are too large and too complicated. The value of the Law Commission is given to us. I am a great fan of the Law Commission and its work. I am very pleased that this House, through its new, expedited procedures, brings more Law Commission work through Parliament. It set out on a massive task of looking at finance Bills between 1950 and 2010. Over 14 years, five major consolidations were produced, which must have been an amazing labour of love by the members of the Law Commission who combed their way through successive finance Bills, sifting out the unnecessary.
I also asked which is the oldest statute still active. It is the Statute of Marlborough 1267, which is an omnibus Bill covering distraint on goods without the permission of the courts, tort waste and the suing of outgoing tenants to maintain a property in good order. Dealing with these Bills—starting with Marlborough in 1267 and ending with the electoral boundaries Bill—underpins the sense of history and continuity in the work that we do every day in these two Chambers.
As I have said, with great confidence I will send it to the Consolidation Bills Joint Committee. As a junior member of that committee 30 years ago, I remember the thoroughness with which it does its job. I commend the Bill to the House.
Crime and Courts Bill [HL]
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Lord McNally
“Dealing non-custodially with offenders
Schedule (Dealing non-custodially with offenders) (which makes provision about community orders, restorative justice, community requirements in suspended sentence orders, compensation orders and fines etc) has effect.”
The Minister of State, Ministry of Justice (Lord McNally)
My Lords, it may assist the Committee if I say a few words about the shape of this afternoon’s debate. A large number of amendments are down. The noble Lord, Lord Ramsbotham, has given notice of his intention to oppose the Question that Clause 23 stand part of the Bill. I shall also oppose Clause 23 because the whole aim of this process is now to replace Clause 23 with the outcome of the Government’s consultation that allows this debate today.
I see the proceedings today and on 13 November as running in this way. Today, we will have, to all intents and purposes, the kind of Second Reading debate that we would have had if this work had been in its proper place when we reached Clause 23. It has been agreed through usual channels to recommit the provisions of the community sentencing and deferred prosecution agreements so that we can effectively debate them in two stages; first, today’s Second Reading-style debate and, secondly, a Committee-style debate on 13 November, when noble Lords will be able put down appropriate amendments. Today, Second Reading rules apply. For good order, I shall move separately the two blocks of amendments, those referring to community sentencing and those to deferred prosecution agreements. Our first debate will be on the community sentencing proposals. When that debate is complete, I will close that debate until 13 November and then make some opening remarks on the deferred prosecution arrangements, which will allow another Second Reading-type debate. I hope that that is clear to noble Lords and will allow us a good, well informed debate on both sets of proposals.
The amendments will strengthen the community sentencing framework to ensure that non-custodial sentences provide robust punishment, are effective in reducing reoffending and give a better deal for victims. The amendments give effect to a number of proposals in the Punishment and Reform: Effective Community Sentences consultation that the Government published in March of this year. As noble Lords will be aware, non-custodial sentences make up the great majority of sentences imposed by our courts. In 2011, fines and community orders made up around 80% of the sentences handed down by the courts. Given those numbers, it is clearly vital that sentences served in the community punish offenders, prevent further offending and repair the harm caused to victims and communities.
Our current community sentences framework delivers some of those purposes better than others. For example, community orders can be effective at tackling the causes of reoffending. The reoffending rate for adults subject to court orders in the 12 months ending September 2010 was 34%. The reoffending rate has fallen by 3.9 percentage points since 2000. Although there is still further to go, these figures are evidence of the hard work and dedication of all of those who work with offenders within probation and other organisations.
However, at present, community orders do not always inspire public confidence. Some community orders do not contain an element that the public would consider punitive, demanding or restrictive. For example, in 2011, around 10% of community orders contained only a supervision requirement, while the percentage of successfully completed orders is still low. The Government are determined to increase public confidence that community orders provide a proper sanction for criminal behaviour. Only in this way can community sentences be effective at tackling the causes of offending while reassuring victims and communities that justice has been done.
There is also scope for community orders to do much more to provide reparation to individual victims and communities affected by crime. It is true that around one-third of all requirements commenced with the probation service are community payback. In 2011 around 50,000 community orders had a compensation order imposed alongside them. But while some community orders already engage victims and offenders in restorative activities, the Government believe that there should be much greater use of restorative justice across the community sentencing framework and beyond.
Before I go into the detail of these amendments, it may assist the Committee if I summarise the responses to our consultation. We received just under 250 responses from a wide range of criminal justice professionals, representative groups, private and third-sector organisations and others. Practitioners have been clear that we need to trust their professional judgment and expertise, and that in doing so it is vital we retain the flexibility of the community order framework. They have also been clear that a one-size-fits-all approach to reforming community orders will not work.
The feedback has been critical in refining and reshaping our proposals. As a result, we have decided not to take forward some proposals. For example, we received a wide range of views on our original proposal for a centrally mandated intensive community punishment order but a common theme was the need to shape intensive orders around local needs. Changes to community orders under the Legal Aid, Sentencing and Punishment of Offenders Act 2012 will give courts new and strengthened requirements to impose on offenders and will increase their flexibility to tailor rehabilitative requirements to offenders’ needs. These changes should provide the courts with more flexible and robust community order requirements that can be combined in creative ways to provide a sentence that delivers intensive punishment but is tailored to local circumstances.
Similarly, the Government have listened to the views of respondents on our original proposal for a fixed penalty for certain breaches of community orders and on giving offender managers the power to impose them. Instead, we have considered alternative means of making the breach process swifter and more immediate for offenders. For example, a significant cause of adjournment of breach hearings is that the defendant is not present. We propose to do further work with the courts, judiciary and probation service to explore improvements in operational procedures for dealing with breaches.
Turning to the detail of our amendments, the core provisions are to be found in the new schedule to be inserted by Amendment 155EZA. Part 1 of the new schedule flows out of our original consultation proposal to require all community orders to include at least one specified punitive element. The Government continue to believe that community orders must represent a clear sanction for criminal behaviour. However, we have listened to the views of respondents who argued that what is punitive for one offender may not be punitive for another and that the courts are best placed to determine what is an appropriate punishment. Part 1 will therefore require courts to impose an element that fulfils the purpose of punishment as part of every community order. That element can either be a requirement of a community order or a fine. The fact that a community order includes a punitive element does not mean that it may not also include a requirement or requirements that are rehabilitative.
In response to the feedback we have received, the duty does not specify what requirements courts should impose. However, based on comments from sentencers and other practitioners on what they generally consider to be a punitive requirement, a punitive element might generally include a restriction of liberty that represents a recognisable sanction to the public, such as a curfew, exclusion or community payback. Many community order requirements are capable of delivering both punishment and rehabilitation at the same time.
The Government have also borne in mind that there may be a minority of offenders for whom a requirement that fulfils the purpose of punishment is not appropriate. The duty therefore provides for an exemption where there are exceptional circumstances that would make it unjust to impose a punitive element. We received a wide range of views from practitioners on cases in which a punitive element might not be appropriate. Ultimately, what constitutes an exceptional case can relate only to the circumstances of each individual case, and the Government believe that that is properly a matter for the courts.
Part 2 of the new schedule amends the courts’ existing powers to defer sentencing in order for a victim and offender to take part in restorative activities. As noble Lords will be aware, restorative justice can have a positive impact on both victim satisfaction and reoffending. The Government believe that access to restorative justice should be available for all victims at all stages of the justice process, so that, where appropriate, they can opt-in at a time that is right for them. For some victims, that may happen immediately after an incident occurs, while other victims may want to participate in a restorative justice process post-sentencing.
We have noted in particular the significant support that consultation respondents expressed for increasing the use of restorative justice between conviction and sentence and the potential benefits that that could have for both victims and offenders. New Section 1ZA of the Powers of Criminal Courts (Sentencing) Act 2000, as inserted by Paragraph 5 of the new schedule, therefore makes it clear that courts can defer sentences until a restorative activity has taken place, if that is the course of action that both the victim and the offender choose.
This amendment is an integral part of the Government’s wider work on developing a cross-criminal justice system framework for restorative justice. The framework will seek to ensure that there is a coherent vision of how restorative justice should apply across all stages of the justice process, including how we build local capacity within available funding and how we ensure a consistently high quality of delivery through accreditation and training standards.
Part 3 of the new schedule removes the current £5,000 cap on a single compensation order that applies in the magistrates’ courts for adult offenders. The Government are committed to ensuring that as many victims as possible receive financial compensation from their offender. This change will give magistrates greater flexibility to impose appropriate levels of compensation in cases where significant harm may have been involved; for example, in environmental offences or criminal damage offences.
Part 4 of the new schedule amends courts’ powers to use technology to monitor offenders electronically as part of a community order. Current legislation already allows electronic monitoring technology to be used to monitor compliance with any other requirements imposed by the court as part of a community order. The vast majority of electronic monitoring is currently delivered by way of radio frequency technology. This technology has proven to be robust and reliable and an accurate way of monitoring an offender’s compliance with their curfew requirement. However, its capability is in practice limited to monitoring whether the offender is present at a specified address during specified times. The Government want to harness recent developments in technology to make greater use of location monitoring technologies, such as GPS, for offenders serving community orders. The National Offender Management Service is currently recompeting its contracts for providing electronic monitoring, which will include this new technology.
In addition to using location monitoring technology to enforce existing community order requirements, the Government propose to give the courts power to track offenders for the purposes of deterring crime, public protection and crime detection. The Government are clear that implementation of the new provision will be subject to the relevant technology being affordable and fit for purpose and to appropriate safeguards for its use being in place. Among other things, the Secretary of State will be under a duty to publish a code of practice setting out the appropriate tests and safeguards for the use, retention and sharing of any collected data.
Part 5 of the new schedule amends courts’ powers to order offenders to provide a statement of their financial circumstances before imposing a financial penalty or dealing with default in payment to make it clear that such a statement may include details of all their assets. Our consultation set out our aspiration to make greater use of asset seizure across the justice system. We consulted on the idea of creating a stand alone sentencing power to seize offenders’ assets as a punishment in its own right. Many respondents felt that in practice such a power could be difficult to impose and enforce. However, some respondents suggested that greater weight might be placed on offenders’ assets when fixing financial penalties.
Courts are already required to have regard to offenders’ financial circumstances when fixing fines, compensation orders and other types of financial order. In many cases, information about offenders’ earnings and outgoings will be sufficient for courts to set a proportionate and equitable penalty. However, the Government wish to ensure that, in cases where offenders may be cash-poor but have items of property that are more valuable, courts can, if appropriate, take account of this when fixing the value of a financial penalty.
Part 6 creates new powers for Her Majesty’s Courts and Tribunals Service to access data from Her Majesty’s Revenue and Customs and the Department for Work and Pensions to ensure that, when setting the level of a fine or compensation order, the courts have accurate information about an offender’s income or state benefits. This will ensure that fines are set at the appropriate level—not too low if they have a well paid job and not too high if they rely on state benefits.
With the addition to the Bill of these substantive provisions on community and other non-custodial sentencing, I am happy, as I said, to join the noble Lord, Lord Ramsbotham, in opposing the Question that Clause 23 should stand part of the Bill. I believe that these amendments will build on the strength of our current community sentencing framework to ensure that such sentences strike the right balance between punishment, rehabilitation and reparation when they are effectively enforced. I commend the amendments to the Committee. I beg to move.
Lord McNally
My Lords, I am grateful to the noble Lord, Lord Beecham, for that response. As is often the case with his contributions, it contains a great deal with which I agree. I am also grateful to him for putting on the record statistics about the nature of people who come into our criminal justice system.
I am pleased that the noble Lord emphasised the prize of rehabilitation. I have never hidden the fact that I am not pleased with a 50% reoffending rate in mainstream prisons and a 75% reoffending rate among youth offenders. Fortunately, a very small core of youth offenders are now in custody. Even the most hard-nosed of criminal justice practitioners must see the common sense of cutting into reoffending rates which has the threefold benefit of saving the taxpayer the £40,000 or so a year it costs to keep the reoffender in prison, saving victims the trauma of future crimes and giving society a law-abiding member. So the prize for getting rehabilitation onto the agenda is extremely important. I am very grateful for some of the comments —here we had recently a Conservative Prime Minister talking positively about a rehabilitation revolution. That is very welcome and is something to build on.
I wish to comment on two of the points made by the noble Lord, Lord Beecham. I would like us to achieve with women offenders some of the success that we have had with young offenders. As the noble Lord rightly said, you do not have to look in too many women’s prisons to see those who have no place there. I am glad to say that my colleague in the other place, Helen Grant, has taken responsibility for our women’s strategy and will be publishing shortly an update of that strategy, which I freely admit will build on the pioneering work of the Corston report in relation to women prisoners. The noble Lord is also right about the 18 to 25 age group where criminality becomes embedded. We should be looking at how we try to identify some of the specific issues there.
As always with debates in your Lordships’ House, I am left with a pile of notes that either I have made myself or the Box has supplied, which would keep me here until well after the dinner hour. I would therefore ask that I and noble Lords are spared a response to every question, and I hope that we can raise them again in Committee.
Of course I do not see restorative justice being simply about saying sorry, although, interestingly, it is sometimes the most difficult thing to say. However, restorative justice also forces the offender to face the consequences of their actions and the impact that they have had upon others. In this way, it can help rehabilitate offenders and enable them to stop offending. It can help motivate them to change and become responsible, law-abiding and productive members of society.
In the examples of restorative justice that I have seen, its importance for victims should not be underestimated. The victims said on many occasions, “That enabled me to have closure” on what had been a very traumatic experience. I was therefore grateful for the comments made about our proposals on restorative justice, although I should say to all my colleagues who said that it is a big commitment that I do not underestimate the fact that it will have to be prepared with the proper training and rollout. I pay tribute to the noble and learned Lord, Lord Woolf, because it was his constant harrying on restorative justice that made it a priority for me. While I take on board the fact that it is a tough ask, perhaps I may quote Mao Tse-Tung, who said,
“The journey of a thousand miles begins with a single step”.
I hope that this is the single step that takes us towards restorative justice.
I was slightly disappointed that the noble Lord, Lord Reid, did not ride to my rescue because, again, I agreed with much of what he said. I agree that there are people in our prisons who should not be there. One of the things that I hope we are developing in this policy is the twin track, which will make sure that the people who should be in prison are put there because of the nature of their offences or for public protection, but those who should not be in prison are managed safely out of the system.
I was glad of the references to one of my other standby quotations—Jimmy Maxton’s comment about riding two horses at once. That is precisely and unashamedly what we are trying to do. We are trying to make sure that the public have a confidence in community sentencing that will allow us to implant rehabilitation into the community sentencing process, which we hope will provide the impact on reoffending that I have said is so desirable. I agree that there is a certain element of riding two horses at once. We need public confidence in community sentencing if we are going to give it the traffic that we want it to bear.
Lord Beecham
Does the Minister agree that it is essential that the horses run in the same direction?
Lord McNally
Absolutely. We might get on to troikas in a few minutes, but we will wait for that.
I also fully understand the separation of powers in our system. The judiciary and parliamentarians should show due respect for each other, but we should also respect that in the workings of the criminal justice system parliamentarians have a responsibility as well as the judiciary, and they are quite entitled in that responsibility to comment on how the system is working. I have to say to the noble Lord, Lord Elystan-Morgan, that if proposing amendments to the criminal justice system somehow disowns all the decisions that judges have made under previous legislation, it must have been really difficult under the previous Government who, I think, passed a piece of criminal justice legislation on average every year for 10 years. We should not get too thin-skinned about it. I have absolute respect for our judiciary and it is a bit rum to say that we are bullying or being high-handed. One of the key elements of this Bill spelt out clearly our trust in the sentencer to make the crucial judgments about balance in terms of punishment.
Of course we will consult on guidance. When sentencing any offender, courts are under a statutory duty to follow any relevant guidelines issued by the Sentencing Council.
Lord Elystan-Morgan
Does the Minister accept the logic of the situation that, if he is right about the one-third of community sentences that according to the government definition do not carry a punitive element, that one-third—amounting to many tens of thousands of sentences each year—would be disallowed and that that is the effect of the situation over the past nine years since the 2003 Act came into force?
Lord McNally
I am sorry but I completely failed to follow the logic of this. Parliament is entitled to take another view nine years after a piece of legislation is enacted. That does not mean that decisions taken under the 2003 Act between its enactment and this Bill becoming law become completely invalid, it just means that Parliament has taken another view on this and has given some further guidance as to how the council should carry out its responsibilities. The Government are saying that they believe that the third or so of community sentences that did not have any punitive element would have been better and more effective if a punitive element had been included. We have had a lot of debate about this, but imagining that community sentencing that does not have punitive elements will have public confidence is going too far. I can tell the noble Lord, Lord Reid, that I had a very good example of one of his pieces of handiwork. I went to see a group of young men clearing a patch of derelict land and they were all wearing bright orange jackets. I asked the supervisor, “Do you have any trouble?”, and he replied, “Only that they steal the jackets because they’re quite a symbol to wear at the dances on Saturday nights”. That is the reality at the sharp end.
There is a fear of the word “punishment”, and the noble Lord, Lord Beecham, mentioned some statistics. I have said this at this Dispatch Box before: at one of my first ministerial visits to a young offender institution, there was a group of 16 and 17 year-olds standing around and I said to the person in charge, “What are the factors involved in these guys being here?”. He looked across at me and said, “Most of them have had but a passing contact with our education system throughout their lives, and most of them can’t read or write”. If we have young people, in particular, in our care and custody for a period of time, it does not seem unreasonable to say, “While you’re there, you’re going to learn to read and write”, or, if they are on a community sentence, “While you’re on that community sentence, we’re going to teach you to read and write”. Somebody who may never have got up before noon in his life might classify learning to read and write as a punishment, but later in his life he may classify it as one of the turning points in his life.
I understand some of the concerns but let us not get too worried about some of the presentational aspects; let us dig down into what the Bill is going to do. I think that it will put community sentencing on to the map in a way that will attract public confidence and enable us to take proper action on the rehabilitation of offenders.
I reassure noble Lords that we are looking very carefully at electronic monitoring and we will keep the House informed as we examine the technologies. Of course, we are aware that there will be civil liberties concerns in this area which we will wish to address and on which we will wish to reassure Parliament.
With the leave of the Committee, I shall look through my notes and, where there have been specific questions that I can reply to, I shall do so in writing. However, I know that this excellent debate has fulfilled the first of our objectives. I take on board the concerns that have been expressed about probation. I am a lifelong admirer of the probation service and am in awe of the responsibilities that our probation officers take on. I cannot imagine that any future structure would not draw on the experience and ethos that makes it such an excellent service.
Baroness Butler-Sloss
Before the Minister concludes, perhaps I may again raise the question of “exceptional circumstances”. I hope that he appreciates the limitation of the word “exceptional”. I think that the lawyers in this House will all agree that that word will be treated by the courts as really meaning exceptional.
Lord McNally
I shall certainly take that back. Perhaps I may be quite clear about the Government’s intention. The use of “exceptional” is not a three-lane highway out of a request to have a punitive element. In consultation we have said that we see “exceptional” covering about 5% of circumstances. The point I am making is that the punitive concept is widely drawn and is very much in the hands of the sentencer. However, I will take back the noble and learned Baroness’s point about what the lawyers would make of this. We are expanding the definition from the 2003 Act and will see whether more legal advice is needed on the meaning of “exceptional”. However, it cannot mean that the exceptional becomes the general.
Lord Reid of Cardowan
The Minister said something very interesting there and I just want to clarify it as far as we can at this point. He said that some people might regard learning to read and write as punishment, but presumably some others might regard cleaning up a park, building a house or helping old people as punishment—in other words, they would be doing something they would not freely choose to do unless they were compelled to do it as a punishment. Would that fit into this category without having to be an exception?
Lord McNally
Yes, and I think that some of the people who have been quoted as pleading exception could well be asked to work in some of those areas. The noble Lord, Lord Elystan-Morgan, shakes his head but, for me, the big danger is there being public contempt for a system where we need public respect. I am talking about somebody whose life is totally dysfunctional, who has never been used to getting up in the morning and who has no idea of time-keeping. We have heard about a number of programmes where half a dozen people are invited to participate but within a week the number is down to two because the others have not bothered to attend. We have to get credibility into the system to make it work. Because we are putting flexibility and trust in the judiciary, I hope that it will see what Parliament is looking for and help us to that end.
Lord Beecham
This is not on the substance but perhaps I may ask for clarification on what the Minister is moving. Presumably he is not moving the amendments, because we will be doing that when the clauses are recommitted to Committee.
Lord Beecham
I know what we are speaking to but we are not voting on it. We are not agreeing these amendments. Perhaps the clerks might advise. Are we not recommitting today’s business at the end of the next debate? I am not sure precisely what the procedure is. I suggest that the amendment be not moved and that we just leave it.
Lord McNally
All is now clear. Yes, we have to accept these amendments but they are then subject to amendment at the next stage. They have to be in the Bill to allow us to proceed; otherwise we will still have a blank page.
Lord Rosser
As long as we are clear—I think we are; and I am not accusing the Minister of being otherwise —that, whatever happens now, if the amendments are in some way agreed, it will be open to us to have effectively a Committee stage next month where amendments to these government amendments can be put down, debated and voted on, if votes are called.
Lord McNally
I can absolutely give those assurances. The clerk advises me, and I am sure she is right, that if we did not move the amendments we would have a blank page. Your Lordships will then have something to put amendments to, so that we can have a proper Committee stage with amendments.
Lord Beecham
These seem exceptional circumstances and, in that light, I am sure that we will accept the ruling.
Lord McNally
“Deferred prosecution agreements
Schedule (Deferred prosecution agreements) makes provision about deferred prosecution agreements.”
Lord McNally
I beg to move this formally. Again, these amendments are purely technical. They either have been previously discussed or are consequential. They just bring the position up to date.
Lord McNally
Lord McNally
“( ) an order under paragraph 3(1)(c) or 31 of Schedule (Deferred prosecution agreements);”
Lord McNally
“Dealing non-custodially with offendersPart 1Community orders: punitive elements1 The Criminal Justice Act 2003 is amended as follows.
2 In section 177 (community orders) after subsection (2) insert—
“(2A) Where the court makes a community order, the court must—
(a) include in the order at least one requirement imposed for the purpose of punishment, or(b) impose a fine for the offence in respect of which the community order is made, or(c) comply with both of paragraphs (a) and (b).(2B) Subsection (2A) does not apply where there are exceptional circumstances which—
(a) relate to the offence or to the offender,(b) would make it unjust in all the circumstances for the court to comply with subsection (2A)(a) in the particular case, and(c) would make it unjust in all the circumstances for the court to impose a fine for the offence concerned.”3 In section 148(2A) (restrictions in subsection (2) on making community orders etc are subject to certain enactments) after “subject to” insert “section 177(2A) (community orders: punitive elements) and to”.
4 An amendment made by this Part of this Schedule does not affect orders in respect of offences committed before the amendment comes into force.
Part 2Deferring the passing of sentence to allow for restorative justice5 After section 1 of the Powers of Criminal Courts (Sentencing) Act 2000 (court’s power to defer passing of sentence) insert—
“1ZA Undertakings to participate in restorative justice activities
(1) Without prejudice to the generality of paragraph (b) of section 1(3), the requirements that may be imposed under that paragraph include restorative justice requirements.
(2) Any reference in this section to a restorative justice requirement is to a requirement to participate in an activity—
(a) where the participants consist of, or include, the offender and one or more of the victims, and(b) which aims to maximise the offender’s awareness of the impact of the offending concerned on the victims.(3) Imposition under section 1(3)(b) of a restorative justice requirement requires, in addition to the offender’s consent and undertaking under section 1(3), the consent of every other person who would be a participant in the activity concerned.
(4) For the purposes of subsection (3), a supervisor appointed under section 1A(2) does not count as a proposed participant.
(5) Where a restorative justice requirement is imposed under section 1(3)(b), the duty under section 1(5) (to give copies of order) extends to every person who would be a participant in the activity concerned.
(6) In this section “victim” means a victim of, or other person affected by, the offending concerned.”
6 In section 1(8) of that Act (effect of sections 1 and 1A to 1D) for “1A” substitute “1ZA”.
7 The amendment made by paragraph 5 does not apply in respect of offences committed before the amendment comes into force.
Part 3Removal of limits on compensation orders made against adults8 (1) Section 131 of the Powers of Criminal Courts (Sentencing) Act 2000 (limit on amount payable under magistrates’ court compensation order) is amended as follows.
(2) Before subsection (1) insert—
“(A1) This section applies if (but only if) a magistrates’ court has convicted a person aged under 18 (“the offender”) of an offence or offences.”
(3) In subsection (1) (compensation in respect of an offence not to exceed £5,000) for “a magistrates’ court in respect of any offence of which the court has convicted the offender” substitute “the court in respect of the offence, or any one of the offences,”.
(4) In subsection (2) (limit in respect of offences taken into consideration) for “a magistrates’” substitute “the”.
(5) In the title, at the end insert “in case of young offender”.
9 In section 33B(5) of the Environmental Protection Act 1990 (limit on compensation in relation to conviction for certain environmental offences) after “payable” insert “in case of young offender”.
10 Nothing in this Part of this Schedule affects orders in respect of offences committed before this Part of this Schedule comes into force.
Part 4Electronic monitoring of offenders11 The Criminal Justice Act 2003 is amended as follows.
12 (1) Section 177 (community orders) is amended as follows.
(2) In subsection (1) (requirements which may be included in a community order)—
(a) omit the “and” after paragraph (k), and(b) after paragraph (l) insert “, and(m) an electronic monitoring requirement (as defined by section 215).”(3) In subsection (2) (provisions to which subsection (1) is subject)—
(a) omit the “and” after paragraph (g), and(b) after paragraph (h) insert “, and(i) section 215(2) (electronic monitoring requirement).”(4) In subsection (3) (curfew or exclusion requirement must be accompanied by electronic monitoring requirement) for “(as defined by section 215)” substitute “within section 215(1)(a) for securing the electronic monitoring of the curfew or exclusion requirement”.
(5) Omit subsection (4) (power, in certain cases where subsection (3) does not apply, to impose requirement for electronic monitoring of another requirement included in the community order).
(6) In consequence, omit section 72(2) of the Legal Aid, Sentencing and Punishment of Offenders Act 2012.
13 (1) Section 190 (suspended sentence orders) is amended as follows.
(2) In subsection (1) (requirements which may be included in a suspended sentence order)—
(a) omit the “and” after paragraph (k), and(b) after paragraph (l) insert “, and(m) an electronic monitoring requirement (as defined by section 215).”(3) In subsection (2) (provisions to which subsection (1) is subject)—
(a) omit the “and” after paragraph (g), and(b) after paragraph (h) insert “, and(i) section 215(2) (electronic monitoring requirement).”(4) In subsection (3) (curfew or exclusion requirement must be accompanied by electronic monitoring requirement) for “(as defined by section 215)” substitute “within section 215(1)(a) for securing the electronic monitoring of the curfew or exclusion requirement”.
(5) Omit subsection (4) (power, in certain cases where subsection (3) does not apply, to impose requirement for electronic monitoring of another requirement included in the suspended sentence order).
(6) In consequence, omit section 72(4) of the Legal Aid, Sentencing and Punishment of Offenders Act 2012.
14 In section 192(3)(b) (reviews of suspended sentence order)—
(a) after “electronic monitoring requirement” insert “within section 215(1)(a)”, and(b) for “190(1)” substitute “190(1)(a) to (l)”.15 In section 197(1)(a) (meaning of “the responsible officer” where curfew or exclusion requirement imposed)—
(a) in sub-paragraph (i)—(i) for “177(1)” substitute “177(1)(a) to (l)”, and(ii) for “190(1)” substitute “190(1)(a) to (l)”, and(b) in sub-paragraph (ii) after “requirement” insert “within section 215(1)(a)”.16 (1) Section 215 (electronic monitoring requirement) is amended as follows.
(2) In subsection (1) (“electronic monitoring requirement” is a requirement for securing the monitoring of compliance with other requirements)—
(a) for “for securing the” substitute “to submit to either or both of the following—(a) ”, and(b) at the end insert “, and(b) electronic monitoring of the offender’s whereabouts (otherwise than for the purpose of monitoring the offender’s compliance with any other requirements included in the order) during a period specified in the order.”(3) After subsection (4) insert—
“(4A) Where a relevant order imposes an electronic monitoring requirement, the offender must (in particular)—
(a) submit, as required from time to time by the responsible officer or the person responsible for the monitoring, to—(i) being fitted with, or installation of, any necessary apparatus, and(ii) inspection or repair of any apparatus fitted or installed for the purposes of the monitoring,(b) not interfere with, or with the working of, any apparatus fitted or installed for the purposes of the monitoring, and(c) take any steps required by the responsible officer, or the person responsible for the monitoring, for the purpose of keeping in working order any apparatus fitted or installed for the purposes of the monitoring.”(4) In subsection (5) (electronic monitoring requirement not to be imposed for monitoring compliance with alcohol abstinence and monitoring requirement) after “electronic monitoring requirement” insert “within subsection (1)(a)”.
(5) In subsection (6) (subsection (5) does not prevent electronic monitoring of compliance with other requirements) for “this is” substitute “the electronic monitoring requirement is within subsection (1)(b) or is included”.
17 After section 215 insert—
“215A Data from electronic monitoring: code of practice
(1) The Secretary of State must issue a code of practice relating to processing of data gathered in the course of electronic monitoring of offenders under electronic monitoring requirements imposed by relevant orders.
(2) A failure to observe a code issued under this section does not of itself make a person liable to any criminal or civil proceedings.”
18 (1) Section 218 (availability of arrangements in local area) is amended as follows.
(2) In subsection (4)—
(a) after “electronic monitoring requirement” insert “within section 215(1)(a)”, and(b) in paragraph (b), for “those arrangements” substitute “the arrangements currently available”.(3) After subsection (8) insert—
“(9) A court may not include an electronic monitoring requirement within section 215(1)(b) in a relevant order in respect of an offender unless the court—
(a) has been notified by the Secretary of State that electronic monitoring arrangements are available in the local justice area proposed to be specified in the order,(b) is satisfied that the offender can be fitted with any necessary apparatus under the arrangements currently available and that any other necessary provision can be made under those arrangements, and(c) is satisfied that arrangements are generally operational throughout England and Wales (even if not always operational everywhere there) under which the offender’s whereabouts can be electronically monitored.”19 In Schedule 8 (breach etc of community order) in paragraph 3(b)—
(a) after “electronic monitoring requirement” insert “within section 215(1)(a)”, and(b) for “177(1)” substitute “177(1)(a) to (l)”.20 (1) Schedules 9 and 13 (transfer of community or suspended sentence order to Scotland or Northern Ireland) are amended as follows.
(2) In paragraphs 1(2)(g) and 3(2)(h) of Schedule 9, and paragraphs 1(2)(g) and 6(2)(h) of Schedule 13, after “requirement” insert “within section 215(1)(a)”.
(3) In paragraphs 1(5) and 3(4A) of Schedule 9, and paragraphs 1(5) and 6(4A) of Schedule 13, before “to be complied with” insert “, or an electronic monitoring requirement within section 215(1)(b),”.
21 In Schedule 12 (breach or amendment of suspended sentence order and effect of further conviction) in paragraph 15(2)(b)—
(a) after “electronic monitoring requirement” insert “within section 215(1)(a)”, and(b) for “190(1)” substitute “190(1)(a) to (l)”.Part 5Statements of assets and other financial circumstances of offenders etcFinancial circumstances orders22 In section 162(3) of the Criminal Justice Act 2003 (a “financial circumstances order” is a pre-sentencing order requiring a statement of an offender’s financial circumstances) after “statement of his” insert “assets and other”.
Further amendments23 In section 84 of the Magistrates’ Courts Act 1980 (court’s power to require statement of means)—
(a) in subsection (1) (court may require statement of means before or on inquiring into means under section 82) for “means”, in the second place, substitute “assets and other financial circumstances”, and(b) in the title for “means” substitute “assets and other financial circumstances”.24 In section 20A of the Criminal Justice Act 1991 (false statements as to financial circumstances)—
(a) in subsection (1) (person charged with offence commits further offence if person responds to official request by making false statement etc as to financial circumstances) for “his financial circumstances” substitute “financial circumstances (whether a statement of assets, of other financial circumstances or of both)”, and(b) in subsection (1A) (person charged with offence commits further offence if person fails to provide statement of financial circumstances in response to official request) for “his financial circumstances in response to” substitute “financial circumstances (whether a statement of assets, of other financial circumstances or of both) requested by”.25 In section 13B of the Crime and Disorder Act 1998 (parental compensation orders: the compensation)—
(a) in subsection (4) (provision by parent or guardian of statement of financial circumstances) after “statement of his” insert “assets and other”, and(b) in subsection (6) (provision of false statement) omit “of his financial circumstances”.26 (1) The Courts Act 2003 is amended as follows.
(2) In paragraph 48 of Schedule 5 (offences relating to provision of information as to financial circumstances)—
(a) in sub-paragraph (1) (person commits offence if person responds to relevant request by making false statement etc as to financial circumstances) for “his financial circumstances” substitute “financial circumstances (whether a statement of assets, of other financial circumstances or of both)”,(b) in sub-paragraph (3) (person commits offence if person fails to provide statement of financial circumstances in response to relevant request) for “statement of his financial circumstances to a fines officer in response to” substitute “fines officer with a statement of financial circumstances (whether a statement of assets, of other financial circumstances or of both) requested by”, and(c) in sub-paragraph (5) (meaning of “relevant request”), in the opening words, after “information about P’s financial circumstances” insert “(whether about P’s assets, P’s other financial circumstances or both)”.(3) In paragraph 2 of Schedule 6 (cases in which work order may be made)—
(a) in sub-paragraph (3) (magistrates’ court considering making work order may order person to give statement of means) for “means” substitute “assets and other financial circumstances”, and(b) in sub-paragraph (4) (application of section 84(2) and (4) of the Magistrates’ Courts Act 1980) for “means” substitute “assets and other financial circumstances”.Part 6Information to enable a court to deal with an offenderPower to disclose information27 (1) The Secretary of State or a Northern Ireland Department, or a person providing services to the Secretary of State or a Northern Ireland Department, may disclose social security information to a relevant person.
(2) Her Majesty’s Revenue and Customs, or a person providing services to the Commissioners for Her Majesty’s Revenue and Customs, may disclose finances information to a relevant person.
(3) The disclosure authorised by sub-paragraph (1) or (2) is disclosure of the information concerned for use by a court that, in connection with dealing with a person (“the defendant”) for an offence, is inquiring into or determining the defendant’s financial circumstances.
(4) Sub-paragraphs (1) and (2) do not authorise disclosure in a particular case at a time when the defendant is under 18.
(5) Information disclosed to a relevant person under sub-paragraph (1) or (2) or paragraph (a)(ii)—
(a) must not be further disclosed by the relevant person except—(i) to a court that, in connection with dealing with the defendant for the offence, is inquiring into or determining the defendant’s financial circumstances, or(ii) to another relevant person who wants social security information or finances information in order that it can be put before a court that, in connection with dealing with the defendant for the offence, is inquiring into or determining the defendant’s financial circumstances, and(b) must not be used by the relevant person otherwise than for the purpose of disclosing it as mentioned in paragraph (a)(i) or (ii).(6) Sub-paragraphs (1), (2) and (5)(a) not only authorise disclosure after conviction of the defendant but also authorise disclosure at any time after the defendant is first charged with the offence.
(7) Sub-paragraph (5) does not prohibit—
(a) disclosure to the defendant, or to a person representing the defendant in any proceedings in connection with the offence;(b) disclosure or use of information which is in the form of a summary or collection of information so framed as not to enable information relating to any particular person to be ascertained from it;(c) disclosure or use of information which has previously been disclosed to the public with lawful authority;(d) disclosure or use of information so far as necessary to comply with—(i) an order of a court,(ii) an order of a tribunal established by or under an Act, or(iii) a duty imposed by or under an Act.(8) In sub-paragraph (7) “court” means any court, but elsewhere in this paragraph “court” means—
(a) a magistrates’ court, or the Crown Court, in England and Wales,(b) the Court Martial, the Service Civilian Court or the Summary Appeal Court, or(c) any court hearing an appeal (including an appeal by case stated) from a court within paragraph (a) or (b).(9) In this paragraph—
“finances information” means information which—(a) is about a person’s income, gains or capital, and(b) is held—(i) by Her Majesty’s Revenue and Customs, or(ii) by a person providing services to the Commissioners for Her Majesty’s Revenue and Customs in connection with the provision of those services;“relevant person” means—(a) a person who is appointed by the Lord Chancellor under section 2(1) of the Courts Act 2003 or provided under a contract made by virtue of section 2(4) of that Act,dd(b) a person who is a member of or on the staff of the Service Prosecuting Authority, or(c) a person not within paragraph (b) who is, or who is assisting, a person engaged to represent the Service Prosecuting Authority in proceedings before a court;“Service Prosecuting Authority” means—(a) the Director of Service Prosecutions, and(b) the persons appointed under section 365 of the Armed Forces Act 2006 (prosecuting officers);“social security information” means information which is held for the purposes of functions relating to social security—(a) by the Secretary of State or a Northern Ireland Department, or(b) by a person providing services to the Secretary of State, or a Northern Ireland Department, in connection with the provision of those services,or information which is held with information so held. (10) The reference in sub-paragraph (9) to functions relating to social security includes a reference to functions relating to any of the matters listed in section 127(8) of the Welfare Reform Act 2012 (statutory payments and maternity allowances).
Offence where information wrongly used or disclosed28 (1) It is an offence for a person to disclose or use information in contravention of paragraph 27(5).
(2) It is a defence for a person charged with an offence under sub-paragraph (1) to prove that the person reasonably believed that the disclosure or use concerned was lawful.
(3) A person guilty of an offence under sub-paragraph (1) is liable—
(a) on conviction on indictment—(i) to imprisonment for a term not exceeding 2 years, or(ii) to a fine, or(iii) to both;(b) on summary conviction—(i) to imprisonment for a period not exceeding 12 months, or(ii) to a fine not exceeding the statutory maximum, or(iii) to both.(4) Sub-paragraph (3)(b) applies—
(a) in England and Wales in relation to offences committed before the commencement of section 154(1) of the Criminal Justice Act 2003 (general limit on power of magistrates’ courts to impose imprisonment), and(b) in Northern Ireland,as if the reference to 12 months were a reference to 6 months.(5) A prosecution for an offence under sub-paragraph (1)—
(a) may be instituted in England and Wales only by or with the consent of the Director of Public Prosecutions, and(b) may be instituted in Northern Ireland only by or with the consent of the Director of Public Prosecutions for Northern Ireland.Part 7Related amendments in Armed Forces Act 2006Community orders: punitive elements29 The Armed Forces Act 2006 is amended as follows.
30 In section 178 (service community orders), in subsection (3) (provisions of the 2003 Act in which “community order” includes a service community order) for “177(3)” substitute “177(2A)”.
31 (1) Section 182 (overseas community orders) is amended as follows.
(2) After subsection (3) insert—
“(3A) In section 177(2A) and (2B) of the 2003 Act (community orders: punitive elements) “community order” includes an overseas community order if the offender is aged 18 or over when convicted of the offence in respect of which the overseas community order is made.”
(3) In subsection (5) (provisions of the 2003 Act in which “court” includes a relevant service court) for “those provisions” substitute “the provisions of the 2003 Act mentioned in subsections (3A) and (4)”.
32 In section 270 (restrictions on community punishments) after subsection (2) insert—
“(2A) Subsection (2) is subject to section 177(2A) of the 2003 Act (community orders: punitive elements) as applied by section 178(3) and section 182(3A).”
33 An amendment made by any of paragraphs 30 to 32 does not affect orders in respect of offences committed before the amendment comes into force.
Removal of limits on compensation orders made against adults34 (1) Section 284 of the Armed Forces Act 2006 (Service Civilian Court compensation orders etc: maximum amounts) is amended as follows.
(2) After subsection (2) insert—
“(2A) The following subsections apply if (but only if) the Service Civilian Court has convicted a person aged under 18 (“the offender”) of an offence or offences.”
(3) In subsection (3) (compensation in respect of an offence not to exceed amount mentioned in section 131(1) of the Powers of Criminal Courts (Sentencing) Act 2000) for “any offence of which the court has convicted the offender” substitute “the offence, or any one of the offences,”.
(4) Nothing in this paragraph affects orders in respect of offences committed before the day on which this paragraph comes into force.
Electronic monitoring of offenders35 (1) The Armed Forces Act 2006 is amended as follows.
(2) In section 182(1A) (requirements which may not be included in overseas community orders) at the end insert “or (m) (an electronic monitoring requirement)”.
(3) In section 183(1) (provisions of Criminal Justice Act 2003 which do not apply to overseas community orders) for “section 215” substitute “sections 215 and 215A”.
Statements of assets and other financial circumstances of offenders etc36 In section 266(2) of the Armed Forces Act 2006 (meaning of “financial statement order”) after “statement of his” insert “assets and other”.”
Lord McNally
“Deferred Prosecution AgreementsPart 1GeneralCharacteristics of a deferred prosecution agreement1 (1) A deferred prosecution agreement (a “DPA”) is an agreement between a designated prosecutor and a person (“P”) whom the prosecutor is considering prosecuting for an offence specified in Part 2 (the “alleged offence”).
(2) Under a DPA—
(a) P agrees to comply with the requirements imposed on P by the agreement;(b) the prosecutor agrees that, upon approval of the DPA by the court (see paragraph 8), paragraph 2 is to apply in relation to the prosecution of P for the alleged offence.Effect of DPA on court proceedings 2 (1) Proceedings in respect of the alleged offence are to be instituted by the prosecutor in the Crown Court by preferring a bill of indictment charging P with the alleged offence (see section 2(2)(ba) of the Administration of Justice (Miscellaneous Provisions) Act 1933 (bill of indictment preferred with consent of Crown Court judge following DPA approval)).
(2) As soon as proceedings are instituted under sub-paragraph (1) they are automatically suspended.
(3) The suspension may only be lifted on an application to the Crown Court by the prosecutor; and no such application may be made at any time when the DPA is in force.
(4) At a time when proceedings are suspended under sub-paragraph (2), no other person may prosecute P for the alleged offence.
Designated prosecutors3 (1) The following are designated prosecutors—
(a) the Director of Public Prosecutions;(b) the Director of the Serious Fraud Office;(c) any prosecutor designated under this paragraph by an order made by the Secretary of State.(2) A designated prosecutor must exercise personally the power to enter into a DPA and, accordingly, any enactment that enables a function of a designated prosecutor to be exercised by a person other than the prosecutor concerned does not apply.
(3) But if the designated prosecutor is unavailable, the power to enter into a DPA may be exercised personally by a person authorised in writing by the designated prosecutor.
Persons who may enter into a DPA with a prosecutor4 (1) P may be a body corporate, a partnership or an unincorporated association, but may not be an individual.
(2) In the case of a DPA between a prosecutor and a partnership—
(a) the DPA must be entered into in the name of the partnership (and not in that of any of the partners);(b) any money payable under the DPA must be paid out of the funds of the partnership.(3) In the case of a DPA between a prosecutor and an unincorporated association—
(a) the DPA must be entered into in the name of the association (and not in that of any of its members);(b) any money payable under the DPA must be paid out of the funds of the association.Content of a DPA5 (1) A DPA must contain a statement of facts relating to the alleged offence, which may include admissions made by P.
(2) A DPA must specify an expiry date, which is the date on which the DPA ceases to have effect if it has not already been terminated under paragraph 9 (breach).
(3) The requirements that a DPA may impose on P include, but are not limited to, the following requirements—
(a) to pay to the prosecutor a financial penalty;(b) to compensate victims of the alleged offence;(c) to donate money to a charity or other third party;(d) to disgorge any profits made by P from the alleged offence;(e) to implement a compliance programme or make changes to an existing compliance programme relating to P’s policies or to the training of P’s employees or both;(f) to co-operate in any investigation related to the alleged offence;(g) to pay any reasonable costs of the prosecutor in relation to the alleged offence or the DPA.The DPA may impose time limits within which P must comply with the requirements imposed on P.(4) The amount of any financial penalty agreed between the prosecutor and P must be broadly comparable to the fine that a court would have imposed on P on conviction for the alleged offence following a guilty plea.
(5) A DPA may include a term setting out the consequences of a failure by P to comply with any of its terms.
Code on DPAs6 (1) The Director of Public Prosecutions and the Director of the Serious Fraud Office must jointly issue a Code for prosecutors giving guidance on—
(a) the general principles to be applied in determining whether a DPA is likely to be appropriate in a given case, and(b) the disclosure of information by a prosecutor to P in the course of negotiations for a DPA and after a DPA has been agreed.(2) The Code may also give guidance on any other relevant matter, including—
(a) the use of information obtained by a prosecutor in the course of negotiations for a DPA;(b) variation of a DPA;(c) termination of a DPA and steps that may be taken by a prosecutor following termination;(d) steps that may be taken by a prosecutor when the prosecutor suspects a breach of a DPA.(3) The Code must be set out in the report made by the Director of Public Prosecutions to the Attorney General under section 9 of the Prosecution of Offences Act 1985 for the year in which the Code is issued.
(4) The Code may from time to time be altered or replaced by agreement between—
(a) the Director of Public Prosecutions,(b) the Director of the Serious Fraud Office, and(c) any prosecutor who is for the time being designated by an order made under paragraph 3.(5) If the Code is altered or replaced, the new Code must be set out in the report made by the Director of Public Prosecutions to the Attorney General under section 9 of the Prosecution of Offences Act 1985 for the year in which the Code is altered or replaced.
(6) A prosecutor must take account of the Code in exercising functions under this Schedule.
Court approval of DPA: preliminary hearing7 (1) After the commencement of negotiations between a prosecutor and P in respect of a DPA but before the terms of the DPA are agreed, the prosecutor must apply to the Crown Court for a declaration that—
(a) entering into a DPA with P is likely to be in the interests of justice, and(b) the proposed terms of the DPA are fair, reasonable and proportionate.(2) The court must give reasons for its decision on whether or not to make a declaration under sub-paragraph (1).
(3) The prosecutor may make a further application to the court for a declaration under sub-paragraph (1) if, following the previous application, the court declined to make a declaration.
(4) A hearing at which an application under this paragraph is determined must be held in private, any declaration under sub-paragraph (1) must be made in private, and reasons under sub-paragraph (2) must be given in private.
Court approval of DPA: final hearing8 (1) When a prosecutor and P have agreed the terms of a DPA, the prosecutor must apply to the Crown Court for a declaration that—
(a) the DPA is in the interests of justice, and(b) the terms of the DPA are fair, reasonable and proportionate.(2) But the prosecutor may not make an application under sub-paragraph (1) unless the court has made a declaration under paragraph 7(1) (declaration on preliminary hearing).
(3) A DPA only comes into force when it is approved by the Crown Court making a declaration under sub-paragraph (1).
(4) The court must give reasons for its decision on whether or not to make a declaration under sub-paragraph (1).
(5) A hearing at which an application under this paragraph is determined may be held in private.
(6) But if the court decides to approve the DPA and make a declaration under sub-paragraph (1) it must do so, and give its reasons, in open court.
(7) Upon approval of the DPA by the court, the prosecutor must publish—
(a) the DPA,(b) the declaration of the court under paragraph 7 and the reasons for its decision to make the declaration,(c) in a case where the court initially declined to make a declaration under paragraph 7, the court’s reason for that decision, and (d) the court’s declaration under this paragraph and the reasons for its decision to make the declaration,unless the prosecutor is prevented from doing so by an enactment or by an order of the court under paragraph 12 (postponement of publication to avoid prejudicing proceedings).Breach of DPA9 (1) At any time when a DPA is in force, if the prosecutor believes that P has failed to comply with the terms of the DPA, the prosecutor may make an application to the Crown Court under this paragraph.
(2) On an application under sub-paragraph (1) the court must decide whether, on the balance of probabilities, P has failed to comply with the terms of the DPA.
(3) If the court finds that P has failed to comply with the terms of the DPA, it may—
(a) invite the prosecutor and P to agree proposals to remedy P’s failure to comply, or(b) terminate the DPA.(4) The court must give reasons for its decisions under sub-paragraphs (2) and (3).
(5) Where the court decides that P has not failed to comply with the terms of the DPA, the prosecutor must publish the court’s decision and its reasons for that decision, unless the prosecutor is prevented from doing so by an enactment or by an order of the court under paragraph 12 (postponement of publication to avoid prejudicing proceedings).
(6) Where the court invites the prosecutor and P to agree proposals to remedy P’s failure to comply, the prosecutor must publish the court’s decisions under sub-paragraphs (2) and (3) and the reasons for those decisions, unless the prosecutor is prevented from doing so by an enactment or by an order of the court under paragraph 12 (postponement of publication to avoid prejudicing proceedings).
(7) Where the court terminates a DPA under sub-paragraph (3)(b), the prosecutor must publish—
(a) the fact that the DPA has been terminated by the court following a failure by P to comply with the terms of the DPA, and(b) the court’s reasons for its decisions under sub-paragraphs (2) and (3),unless the prosecutor is prevented from doing so by an enactment or by an order of the court under paragraph 12 (postponement of publication to avoid prejudicing proceedings).(8) If the prosecutor believes that P has failed to comply with the terms of the DPA but decides not to make an application to the Crown Court under this paragraph, the prosecutor must publish details relating to that decision, including—
(a) the reasons for the prosecutor’s belief that P has failed to comply, and(b) the reasons for the prosecutor’s decision not to make an application to the court,unless the prosecutor is prevented from doing so by an enactment or by an order of the court under paragraph 12 (postponement of publication to avoid prejudicing proceedings).Variation of DPA10 (1) At any time when a DPA is in force, the prosecutor and P may agree to vary its terms if—
(a) the court has invited the parties to vary the DPA under paragraph 9(3)(a), or(b) variation of the DPA is necessary to avoid a failure by P to comply with its terms in circumstances that were not, and could not have been, foreseen by the prosecutor or P at the time that the DPA was agreed.(2) When the prosecutor and P have agreed to vary the terms of a DPA, the prosecutor must apply to the Crown Court for a declaration that—
(a) the variation is in the interests of justice, and(b) the terms of the DPA as varied are fair, reasonable and proportionate.(3) A variation of a DPA only takes effect when it is approved by the Crown Court making a declaration under sub-paragraph (2).
(4) The court must give reasons for its decision on whether or not to make a declaration under sub-paragraph (2).
(5) A hearing at which an application under this paragraph is determined may be held in private.
(6) But if the court decides to approve the variation and make a declaration under sub-paragraph (2) it must do so, and give its reasons, in open court.
(7) Where the court decides not to approve the variation, the prosecutor must publish the court’s decision and the reasons for it, unless the prosecutor is prevented from doing so by an enactment or by an order of the court under paragraph 12 (postponement of publication to avoid prejudicing proceedings).
(8) Where the court decides to approve the variation the prosecutor must publish—
(a) the DPA as varied, and(b) the court’s declaration under this paragraph and the reasons for its decision to make the declaration,unless the prosecutor is prevented from doing so by an enactment or by an order of the court under paragraph 12 (postponement of publication to avoid prejudicing proceedings).Discontinuance of proceedings on expiry of DPA 11 (1) If a DPA remains in force until its expiry date, then after the expiry of the DPA the proceedings instituted under paragraph 2(1) are to be discontinued by the prosecutor giving notice to the Crown Court that the prosecutor does not want the proceedings to continue.
(2) Where proceedings are discontinued under sub-paragraph (1), fresh criminal proceedings may not be instituted against P for the alleged offence.
(3) But sub-paragraph (2) does not prevent fresh proceedings from being instituted against P in a case where, after a DPA has expired, the prosecutor finds that, during the course of the negotiations for the DPA—
(a) P provided inaccurate, misleading or incomplete information to the prosecutor, and(b) P knew or ought to have known that the information was inaccurate, misleading or incomplete.(4) A DPA is not to be treated as having expired for the purposes of sub-paragraph (1) if, on the expiry date specified in the DPA—
(a) an application made by the prosecutor under paragraph 9 (breach) has not yet been decided by the court,(b) following an application under paragraph 9 the court has invited the parties to agree proposals to remedy P’s failure to comply, but the parties have not yet reached an agreement, or(c) the parties have agreed proposals to remedy P’s failure to comply following an invitation of the court under paragraph 9(3)(a) but P has not yet complied with the agreement.(5) In the case mentioned in sub-paragraph (4)(a)—
(a) if the court decides that P has not failed to comply with the terms of the DPA, or that P has failed to comply but does not take action under paragraph 9(3), the DPA is to be treated as expiring when the application is decided;(b) if the court terminates the DPA, the DPA is to be treated as not having remained in force until its expiry date (and sub-paragraph (1) therefore does not apply);(c) if the court invites the parties to agree proposals to remedy P’s failure to comply, the DPA is to be treated as expiring when the parties have reached such an agreement and P has complied with it. (6) In the case mentioned in sub-paragraph (4)(b), the DPA is to be treated as expiring when the parties have reached an agreement and P has complied with it.
(7) In the case mentioned in sub-paragraph (4)(c), the DPA is to be treated as expiring when P complies with the agreement.
(8) Where proceedings are discontinued under sub-paragraph (1), the prosecutor must publish—
(a) the fact that the proceedings have been discontinued, and(b) details of P’s compliance with the DPA,unless the prosecutor is prevented from doing so by an enactment or by an order of the court under paragraph 12 (postponement of publication to avoid prejudicing proceedings).Court order postponing publication of information by prosecutor12 The court may order that the publication of information by the prosecutor under paragraph 8(7), 9(5), (6), (7) or (8), 10(7) or (8) or 11(8) be postponed for such period as the court considers necessary if it appears to the court that postponement is necessary for avoiding a substantial risk of prejudice to the administration of justice in any legal proceedings.
Use of material in criminal proceedings13 (1) Sub-paragraph (2) applies where a DPA between a prosecutor and P has been approved by the Crown Court under paragraph 8.
(2) The statement of facts contained in the DPA is, in any criminal proceedings brought against P for the alleged offence, to be treated as an admission by P under section 10 of the Criminal Justice Act 1967 (proof by formal admission).
(3) Sub-paragraph (4) applies where a prosecutor and P have entered into negotiations for a DPA but the DPA has not been approved by the Crown Court under paragraph 8.
(4) Material described in sub-paragraph (6) may only be used in evidence against P—
(a) on a prosecution for an offence consisting of the provision of inaccurate, misleading or incomplete information, or(b) on a prosecution for some other offence where in giving evidence P makes a statement inconsistent with the material.(5) However, material may not be used against P by virtue of sub-paragraph (4)(b) unless evidence relating to it is adduced, or a question relating to it is asked, by or on behalf of P in the proceedings arising out of the prosecution.
(6) The material is—
(a) material that shows that P entered into negotiations for a DPA, including in particular—(i) any draft of the DPA;(ii) any draft of a statement of facts intended to be included within the DPA;(iii) any statement indicating that P entered into such negotiations;(b) material that was created solely for the purpose of preparing the DPA or statement of facts.Money received by prosecutor under a DPA14 Any money received by a prosecutor under a term of a DPA that provides for P to pay a financial penalty to the prosecutor or to disgorge profits made from the alleged offence is to be paid into the Consolidated Fund.
Part 2Offences in relation to which a DPA may be entered intoCommon law offences15 Conspiracy to defraud.
16 Cheating the public revenue.
Statutory offences17 An offence under any of the following sections of the Theft Act 1968—
(a) section 1 (theft); (b) section 17 (false accounting);(c) section 20 (suppression etc of documents);(d) section 24A (dishonestly retaining a wrongful credit).18 An offence under any of the following sections of the Customs and Excise Management Act 1979—
(a) section 68 (offences in relation to exportation of prohibited or restricted goods);(b) section 167 (untrue declarations etc);(c) section 170 (fraudulent evasion of duty etc).19 An offence under any of the following sections of the Forgery and Counterfeiting Act 1981—
(a) section 1 (forgery);(b) section 2 (copying a false instrument);(c) section 3 (using a false instrument);(d) section 4 (using a copy of a false instrument);(e) section 5 (offences relating to money orders, share certificates, passports etc).20 An offence under section 450 of the Companies Act 1985 (destroying, mutilating etc company documents).
21 An offence under section 72 of the Value Added Tax Act 1994 (fraudulent evasion of VAT).
22 An offence under any of the following sections of the Financial Services and Markets Act 2000—
(a) section 23 (contravention of prohibition of carrying on regulated activity unless authorised or exempt);(b) section 25 (contravention of restrictions on financial promotion);(c) section 85 (prohibition of dealing etc in transferable securities without approved prospectus);(d) section 346 (provision of false or misleading statements to auditor or actuary);(e) section 397 (misleading statements and practices);(f) section 398 (misleading the FSA).23 An offence under any of the following sections of the Proceeds of Crime Act 2002—
(a) section 327 (concealing etc criminal property);(b) section 328 (arrangements facilitating acquisition etc of criminal property);(c) section 329 (acquisition, use and possession of criminal property);(d) section 330 (failing to disclose knowledge or suspicion of money laundering);(e) section 333A (tipping off).24 An offence under any of the following sections of the Companies Act 2006—
(a) section 658 (general rule against limited company acquiring its own shares);(b) section 680 (prohibited financial assistance);(c) section 993 (fraudulent trading).25 An offence under any of the following sections of the Fraud Act 2006—
(a) section 1 (fraud);(b) section 6 (possession etc of articles for use in frauds);(c) section 7 (making or supplying articles for use in frauds);(d) section 11 (obtaining services dishonestly).26 An offence under any of the following sections of the Bribery Act 2010—
(a) section 1 (bribing another person);(b) section 2 (being bribed);(c) section 6 (bribery of foreign public officials);(d) section 7 (failure of commercial organisations to prevent bribery). 27 An offence under regulation 45 of the Money Laundering Regulations 2007 (S.I. 2007/2157).
Ancillary offences28 Any ancillary offence relating to an offence specified in this Part.
Interpretation of this Part29 “Ancillary offence”, in relation to an offence, means—
(a) aiding, abetting, counselling or procuring the commission of the offence;(b) an offence under Part 2 of the Serious Crime Act 2007 (encouraging or assisting crime) in relation to the offence;(c) attempting or conspiring to commit the offence.30 This Schedule applies in relation to conduct occurring before the commencement of this Schedule as if an offence specified in this Part included any corresponding offence under the law in force at the time of the conduct (and for the purposes of this paragraph, the common law offence of inciting the commission of another offence is to be treated as an offence corresponding to an offence under Part 2 of the Serious Crime Act 2007).
Power to amend this Part31 The Secretary of State may by order amend this Part by—
(a) adding an offence of financial or economic crime;(b) removing an offence.Part 3Deferred Prosecution Agreements: Consequential and Transitional ProvisionConsequential amendments32 In section 2 of the Administration of Justice (Miscellaneous Provisions) Act 1933 (procedure for indictment of offenders), in subsection (2) after paragraph (b) insert—
“(ba) the bill is preferred with the consent of a judge of the Crown Court following a declaration by the court under paragraph 8(1) of Schedule (Deferred prosecution agreements) to the Crime and Courts Act 2013 (court approval of deferred prosecution agreement); or”.33 In section 2 of the Criminal Procedure (Attendance of Witnesses) Act 1965 (issue of witness summons on application to the Crown Court), after subsection (6) insert—
“(6A) Where the proceedings concerned relate to an offence that is the subject of a deferred prosecution agreement within the meaning of Schedule (Deferred prosecution agreements) to the Crime and Courts Act 2013, an application must be made as soon as is reasonably practicable after the suspension of the proceedings is lifted under paragraph 2(3) of that Schedule.”
34 In Schedule 1 to the Contempt of Court Act 1981 (times when proceedings are active for purposes of strict liability rule for contempt of court), in paragraph 7, after paragraph (aa) insert—
“(ab) in England and Wales, if they are discontinued by virtue of paragraph 11 of Schedule (Deferred prosecution agreements) to the Crime and Courts Act 2013 (deferred prosecution agreements);”.35 In section 15 of the Prosecution of Offences Act 1985 (interpretation), in subsection (2)(d) after “(b)” insert “or (ba)”.
36 In section 51 of the Criminal Justice and Public Order Act 1994 (intimidation etc of witnesses, jurors and others), in subsection 10(a)(iii) after “2(2)(b)” insert “or (ba)”.
37 (1) The Criminal Procedure and Investigations Act 1996 is amended as follows.
(2) In section 1 (application of Part 1: disclosure), in subsection (2), after paragraph (f) insert “, or
(g) following the preferment of a bill of indictment charging a person with an indictable offence under the authority of section 2(2)(ba) of the Administration of Justice (Miscellaneous Provisions) Act 1933 (bill of indictment preferred with consent of Crown Court judge following approval of deferred prosecution agreement), the suspension of the proceedings against the person under paragraph 2(2) of Schedule (Deferred prosecution agreements) to the Crime and Courts Act 2013 is lifted under paragraph 2(3) of that Schedule.” (3) In section 28 (application of Part 3: preparatory hearings), in subsection (1)(c) after “2(2)(b)” insert “or (ba)”.
(4) In section 39 (meaning of pre-trial hearing), in subsection (2)(a) after “2(2)(b)” insert “or (ba)”.
(5) In Schedule 3 (fraud), in paragraph 8(1)(c) after “2(2)(b)” insert “or (ba)”.
38 In section 85 of the Proceeds of Crime Act 2002 (proceedings), in subsection (1)(c) at the end insert “or subsection (2)(ba) of that section (preferment by Crown Court judge following approval of deferred prosecution agreement)”.
Transitional provision39 (1) Conduct constituting an alleged offence that occurred before the relevant commencement day may be taken into account for the purposes of this Schedule.
(2) In this paragraph, the “relevant commencement day” means—
(a) in a case where the alleged offence is an offence that is specified in Part 2 when this Schedule comes into force, the day on which this Schedule comes into force;(b) in a case where the alleged offence is an offence that is subsequently added to Part 2 (whether by order under paragraph 31 or otherwise), the day when the enactment adding that offence to Part 2 comes into force.”
Lord McNally
First, I thank the House for its understanding. I am sure that your Lordships will not find when you wake up tomorrow morning that you have cleared the Bill at all its stages and that it will not be coming back. It was a slightly unusual procedure and I am very grateful to the House for its co-operation on it. I hope that once people have had a chance to look at Hansard and see the new shape of the Bill we can, in two weeks’ time, have a proper Committee stage with amendments and the rest. We now turn to the second part of what we were trying to do, which is to bring in the deferred prosecution agreement.
These amendments introduce a new tool for tackling corporate economic crime: deferred prosecution agreements. DPAs will enable more organisations involved in wrongdoing to be brought to justice and secure better outcomes for victims. Last year alone, fraud cost its victims and the taxpayer an estimated £73 billion. This is unacceptable. More needs to be done to hold organisations involved in such wrongdoing to account. As noble Lords will be aware, this Government are committed to making sure that there is the same tough response to economic crime as for any other kind of offending. This harmful activity, which undermines the economy, must be tackled.
We have already brought into force the Bribery Act 2010 and published a national strategic plan, Fighting Fraud Together. Furthermore, the Bill will establish the National Crime Agency, which will have a strong focus on combating economic crime. DPAs are the next step in the battle against economic crime. Currently, prosecuting an organisation for economic crime can pose significant challenges. Such prosecutions often take many years and cost millions of pounds. In many cases, a prosecution and conviction can do more harm than good. Organisations may go out of business, shareholders may lose their investments and employees may be out of work.
The key elements of this scheme are set out in the proposed new schedule in this group of amendments. A DPA will be a voluntary agreement between a prosecutor and an organisation under investigation for economic crime. In return for complying with tough terms and conditions, a prosecution will be commenced but deferred for the duration of the agreement. If the organisation successfully complies with the terms of the agreement, the prosecution will be dropped. In this way, organisations would be held to account for their wrongdoing without the uncertainty, expense or length of a criminal trial. However, if the organisation does not comply with the agreement they can be prosecuted in the usual way. The agreement will be subject to oversight and scrutiny by the judiciary to ensure that it is in the interests of justice and that its terms are fair, reasonable and proportionate. Once agreed and approved by the court the agreement will be fully transparent, with the terms being published for all to see.
Initially, the Director of Public Prosecutions and the director of the Serious Fraud Office will be the only prosecutors able to enter into a DPA. This is because they are, by and large, the prosecutors responsible for bringing proceedings for the relevant offences. However, this may not always be the case. The list of relevant economic offences set out in Part 2 of the proposed new schedule may change, as might the role and remit of different prosecutors. That is why we have provided a power for the Secretary of State to designate further prosecutors as being capable of entering into a DPA. Any decision by a prosecutor to enter into a DPA must be made by the director of the relevant prosecuting agency personally, to ensure that there is prosecutorial oversight of each agreement at the highest level.
These agreements may be used only to address alleged economic offending by organisations. Let me be clear: a DPA cannot be entered into with an individual, nor may they be entered into for just any crime. They have been developed to provide an additional tool to assist in the battle against economic wrongdoing by organisations. Individuals who commit economic crime will be best dealt with through criminal prosecution, where a range of punishments and sanctions are available—including the ultimate punishment of imprisonment.
Paragraph 5 of the proposed new schedule sets out the terms that a DPA must and may contain. If DPAs are to be meaningful, they must make clear what wrongdoing they seek to address and what sanctions are being imposed for dealing with this. For that reason, every DPA will contain a statement agreed between the parties setting out the facts of the case.
Each agreement will set out stringent measures with which an organisation must comply. These measures will need to be proportionate to the alleged wrongdoing and capable of being tailored to the facts of the case. The proposed new schedule does not set out every possible term and condition; that is for the parties to decide. However, it does provide examples of terms that might be appropriate. The terms may include compensating victims of the organisation’s wrongdoing and payment of a financial penalty. Other conditions may require the organisation to put in place a robust compliance and monitoring programme or to pay the prosecutor’s costs.
In determining the level of any financial penalty, the amount must broadly reflect the fine that a court would have imposed on a conviction following an early guilty plea by the organisation. Both parties will need to take account of the various factors that would be considered by a sentencing court, including relevant sentencing guidelines relating to offences, application of the early guilty plea reduction and the means of the organisation. Organisations will not be getting off lightly.
Lord Beecham
My Lords, the Minister may not have noticed but during his speech the clock stopped after seven minutes so we had “007” on the clock. Having seen “Skyfall” the other night, I do not quite see the noble Lord as Daniel Craig mark II, but I am sure that he would do very well in that capacity.
Lord McNally
The noble Lord should see me in my swimming trunks before making that judgment.
Lord Beecham
I am too young to appreciate that offer.
It is ironic that notice of the Government’s intention to proceed with amendments to the Bill to legislate for deferred prosecution agreements should itself have been deferred until barely a week before today’s debate. It is quite unacceptable for material to be made available—indeed, its very existence to be revealed—only five days ago. I appreciate that this is by way of a Second Reading debate but Ministers must have formed the intention of bringing these measures forward months ago, presumably at a time when the expected debate on community sentencing had been scheduled to take place very soon after the end of the Summer Recess. I assume that the date was altered to accommodate the change of Lord Chancellor. It is reasonable to seek to accommodate Ministers in such circumstances but entirely unreasonable to make so little effort to accommodate Members of your Lordships’ House. For the record, can we know whether the new Lord Chancellor is to be in charge of this part of the Bill or whether Mr Clarke will be responsible for it in the time he now has to spare without an attachment to a portfolio? Can the Minister also say when the Explanatory Notes for this part of the Bill will be available to Members of your Lordships’ House?
It is not as if the Government’s proposals are unimportant, breaking new ground as they do, in our system of justice. I acknowledge immediately that consideration was given to and work undertaken around the issues raised in this belated addition to the Bill by the previous Government. Indeed, it might be argued that they are, in a way, an extension of the conditional cautions introduced by the previous Government, although, as my noble and learned friend Lord Goldsmith—who might claim paternity of that policy—has pointed out to me, they are at the other end of the offending scale.
We are, after all, apparently seeking to emulate the American system, under which what are often described as aggressive prosecutors drive hard bargains with offending corporations resulting in huge payments—five times as much, or sometimes much more than that, according to the impact statement, as is likely to be yielded under what we are now contemplating.
I confess to an initial reluctance to embrace a situation in which, in the area of economic crime—for that, as the Minister has made clear, is the area to which the proposals are addressed—one class of defendants should have the opportunity of buying off a prosecution for a one-third discount or, to be more precise, an up to one-third discount, of the fine they might otherwise have to pay. The Committee will need to be convinced that such an approach is acceptable in all the circumstances, and the public will need to be convinced that we are not creating a privileged class of potential defendants without achieving a significant benefit, not only in cash terms but also in terms of corporate behaviour. Hugging a hoodie was never an attractive notion to many people. Hugging a bent bank or crooked company is even less likely to appeal.
Is not the reality that these proposals stem essentially from the failure of the Serious Fraud Office to tackle economic crime effectively? It brings few cases and, all too often, as in the recent Tchenguiz case, fails lamentably to prove them after devoting years to the task. That case evinced a warning from the High Court that the Serious Fraud Office did not have the,
“proper resources, both human and financial”,
to investigate it and, by implication, others like it.
The question arises as to whether Ministers believe that the SFO has the resources to do its job effectively, not least in the light of budget cuts already amounting to £7 million, or 19%, since 2009-10, and planned to fall by a further £3 million, or 7%, by 2015.
Noble Lords may be surprised to learn, as I was, that top salaries in the Serious Fraud Office are in the range of £70,000 to £80,000 per annum, roughly what an assistant solicitor in a City firm acting for corporate clients might expect to earn soon after qualifying.
Unsurprisingly, the SFO has tended to use civil recovery orders under the Proceeds of Crime Act, a process which has aroused the concern of the OECD, not least because such a procedure does not lead to a disclosure of the nature of the wrongdoing or the basis of the settlement. I appreciate that the Minister has made it clear that these proposals would, in the event of matters being concluded, lead to such a disclosure and also, presumably, the basis of the settlement. The whole scenario hitherto smacks of recent concerns about the manner in which Her Majesty’s Revenue and Customs have apparently settled claims on terms appearing too generous to some major companies.
Will the new proposals be better resourced than the present system under the SFO which is signally prone to failure, as it has proved? Will the relevant agencies have the,
“proper resources, both human and financial”
to emulate its American counterparts? Will the Government look again at the issue of vicarious liability for the dishonesty of corporate employees rather than relying on the present, if archaic, doctrine of the directing mind, under which there is no such liability on behalf of the corporation unless a director or senior manager is involved?
In their response to the consultation document the Government indicated that they would,
“limit the application of DPAs to economic crimes, but provide for the list of economic crimes for which a DPA is available to be amended”.
Will this be by regulation or primary legislation and, if the former, by the affirmative or negative procedure?
Lord Goldsmith
My Lords, first I want to declare an interest. As my noble friend Lord Beecham said, I had something to do with an earlier consideration of similar problems when my party was in Government and I was in office, and I want to say something about that in a moment. I also declare that I am currently a practising lawyer and that I and my firm get involved in the sort of cases that this may be concerned with. I have seen how these systems work in the United States and I have thought about them quite hard. I want to make it clear that broadly speaking I am in favour of the proposal for deferred prosecution agreements. However, I have some questions that I will come to, and I understand very well the point made by my noble friend about the timing of the proposals being brought forward.
Before I turn to the substance of what I want to say, I am a little confused at the moment about the procedure that is being followed. This may be because unfortunately I was detained from coming to the House when noble Lords were considering the previous group of amendments. I came in at the tail end to hear something that I am not quite sure I understood, about matters being discussed again on a future occasion. But unless I have misunderstood, I notice that the noble Lord, Lord McNally, has moved government Amendment 155ZB, which provides for the introduction of a schedule relating to deferred prosecution agreements. Without, as it were, dissent, we seem at least to have got the concept of a schedule into the Bill. Whether that means that the noble Lord is going to move the schedule as a complete schedule, I am not sure, but if he does, that gives rise to questions about whether there will be any real opportunity to debate or amend its provisions. I want to ask some questions about the detail, so I would be grateful if the noble Lord could explain the situation.
Lord McNally
We are all in a form of something that is not quite unique territory. Because we have used this device, it may be that an eagle-eyed lawyer will spot a contradiction in process. What I will give as an absolute guarantee to the Committee, by whatever means we use to do it, is that this is intended as if it were a Second Reading debate. Any amendments that need to be made and any further consideration of the detail will be permitted when we come back to the Bill on 13 November. I hope that that gives the noble and learned Lord the reassurance he is seeking.
Lord Phillips of Sudbury
My Lords, I did not expect to be able to be here this afternoon. In many ways, I wish I was not, because I am afraid that I take a rather different view from anyone who has spoken so far—except the noble Lord, Lord Beecham. I sympathise with my noble friend the Minister because this is a really difficult area to address in terms of a change in the law, because plainly the present situation is utterly hopeless.
Following the staggering series of events of the past five years, with the collapse of the financial centres of the world, in particular the City, which has required £80 billion of taxpayers’ money to shore up a system that has, let us be frank, been deeply corrupted—a great deal of the failure of the markets was not through lack of prudential wisdom but through market manipulation and criminality of various kinds—not one single person has been prosecuted and put behind bars. I accept what my noble friend the Minister said in opening, that we need to do something, but what we need to do is not to compromise the basic principle of equality before the law—because that is what we are doing—it is to beef up, hugely, the prosecuting authorities in this country. We have played boys’ games with these matters until now.
I had a meeting with the previous head of the Serious Fraud Office and I think I am right in saying that there are a puny number of highly qualified lawyers there to deal with what are the most difficult forms of prosecution on earth. He told me that his entire team would be outmatched by the lawyers and accountants hired by a bank to face a would-be prosecution that the SFO was considering.
It is not right for us to contemplate this fundamentally unacceptable measure until and unless we have summoned the necessary political will to give the prosecuting authorities a chance of doing their job because, hitherto, we have not. I for one would be willing to see a tenfold or twentyfold increase in the necessary personnel, with the necessary increase in their remuneration. The noble Lord, Lord Beecham, was correct that the disparity in remuneration between the gentlemen and ladies in the Serious Fraud Office and the private sector is crazy. I would confront those difficulties and pay for their remedy. Were there effective prosecutions in this country, the fines that resulted from prosecutions of very large institutions for very large frauds would, I suspect, pay for the increase in the prosecuting resources many times over.
We have to be honest with ourselves and with the country over this. This is plea-bargaining. This is breaking the rule of equality before the law because it places huge, powerful, sophisticated companies engaged in premeditated and long-term fraud in a different position from that of a man or woman had up before the local magistrates for shoplifting. That is another form of economic crime. We are driving a coach and horses through the ancient and proper traditions of this country by giving privilege—that is what it boils down to—to the already rich and powerful. My noble friend said in opening that they are not “getting off lightly”. Well, I have to disabuse him: they are getting off extraordinarily lightly. To start with, there is no naming and shaming. When these matters are brought before the court for approval, there will not be facts there given that will hold up for public contempt the main architects of whatever fraud we are talking about. Least of all will there be prosecution and conviction, which will then of course strike very hard at the reception of that by the individuals who are prosecuted and convicted. Perhaps I may ask my noble friend this important question. Will this legislation prevent individual directors and executives of companies entering into a DPA being prosecuted afterwards for their part in the frauds concerned? If they are not susceptible to subsequent prosecution, that is a further failure of the proposed new regime.
This is a more important departure from the status quo than some may realise. This is pure realpolitik of a sort that it is not right for us to contemplate until— I repeat—we have tried giving prosecuting authorities the resources to deal with the offences being committed. As I have said, we are a million miles from that.
Lord McNally
My Lords, again, this has been an extremely useful exercise. I am glad that we have done it in a way which has allowed this Second Reading-style debate. My noble friend Lord Phillips said that he wished that he was not here. I sometimes share his ambitions in that regard.
My noble friend demanded 10 times the budget and 20 times the personnel for the Serious Fraud Office, with an increase in their remuneration. I say with no sense of arrogance that that is the difference between making speeches up there and making them down here. It would be very easy to say, “Oh, well, we’re going spend all this money”, but the reality is—
Lord Phillips of Sudbury
My noble friend does not do my argument justice. I was saying that if the Serious Fraud Office did that, and if prosecutions were brought and convictions obtained, the fines that resulted would cover those costs. A couple of years ago in New York, KMPG was fined $450 million on a plea bargain. That would pay for a lot of people.
Lord McNally
Yes, I did hear the tail end of my noble friend’s argument where he said that it would all be self-financing, which is always another dangerous thing to say in government.
But, yes, I agree. As the noble and learned Lord, Lord Goldsmith, indicated, it has been the ambition of successive Governments to nail down the problem of white collar crime. If they have not done so, it has not been for want of trying. This is obviously a toe-dipping exercise. The noble Baroness, Lady Hamwee, said that we really needed a seminar. I had the benefit of a seminar at an early stage of the process, because Sir Edward Garnier, when he was Solicitor-General, was the first to try to convince me of the usefulness of deferred prosecution agreements. They are, I freely confess, a very pragmatic approach to the problem. It is not as pure an approach as that for which the noble Lord, Lord Phillips, very powerfully argued, but it seems to me to offer real results. As has been pointed by a number of speakers, it is not entirely new to English law in that there are some parallels with environmental legislation and the 2003 legislation to which the noble and learned Lord, Lord Goldsmith, referred.
This is a test to see what kind of results we can get from this approach, with an opportunity perhaps to extend it later. I heard what was said by the noble and learned Lords, Lord Woolf and Lord Goldsmith, and the noble Lords, Lord Beecham and Lord Marks, about individuals as well as companies. We decided not to take it that far. The noble and learned Lord, Lord Woolf, said that we should look again and I am sure that an appropriate amendment will be tabled for the second part of this Committee stage that allows me to address the Government’s concerns about taking it more widely at that point. At the moment, the Government’s view is that this is a prudent move in the direction of seeing whether deferred prosecution agreements can work effectively, and if they do, they would then, as the noble Lord, Lord Marks, said, start to find their way into our system more easily. I fully agree with the noble and learned Lord, Lord Goldsmith, that it would not just be a matter of patching up previous behaviour but of making sure that there was, as part of any agreement, monitored good behaviour for the future.
Lord Beecham
I am not asking the Minister to reply now because noble Lords are waiting for the next debate, but I remind him that I raised two questions about Parliament’s role in relation to the Bill; first, in relation to the code which the Director of Public Prosecutions and the director of the Serious Fraud Office will produce and, secondly, in relation to penalties which the Sentencing Council will propose. We are concerned about that area, as will be other Members of your Lordships’ House. A reply about that would be helpful before we get to the next stage.
Lord McNally
I am grateful to the noble Lord. I could try and busk it now but it would be far more sensible to write to him and share that with the Committee. To make us entirely in order for our debate on 13 November, when amendments will be acceptable and we will be back on course as a normal Committee day, I must now move Amendment 155EZC.
Lord McNally
(b) where Part 4 of Schedule (Dealing non-custodially with offenders) and section (Dealing non-custodially with offenders) so far as relating to that Part of that Schedule are brought into force in relation to a specified area for a specified period, in connection with those provisions ceasing to be in force at the end of that period or at the end of that period as continued under section 31(4B).”
Lord McNally
Lord McNally
“(4A) An order which brings the monitoring provisions into force only in relation to a specified area may provide that they are to be in force in relation to that area for a specified period; and in this subsection and subsection (4B) “the monitoring provisions” means Part 4 of Schedule (Dealing non-custodially with offenders), and section (Dealing non-custodially with offenders) so far as relating to that Part of that Schedule.
(4B) An order containing the provision permitted by subsection (4A) may be amended by a subsequent order under subsection (2) so as to continue the monitoring provisions in force in relation to the area concerned for a further period.”
Lord McNally
(a) section 22;(b) paragraph 28 of Schedule (Dealing non-custodially with offenders) and section (Dealing non-custodially with offenders) so far as relating to that paragraph, but only so far as relating to disclosure or use of information by a person appointed under section 2(1) of the Courts Act 2003 or provided under a contract made by virtue of section 2(4) of that Act;(c) ”
Lord McNally
Inheritance (Cohabitants) Bill [HL]
Lord McNally Excerpts(12 years, 2 months ago)
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The Minister of State, Ministry of Justice (Lord McNally)
My Lords, I am grateful to the noble Baroness, Lady Thornton, for that response indicating the attitude of the official Opposition to the Bill. I do not follow her entirely on the subject of the contribution of the noble Baroness, Lady Deech—or, indeed, any of the contributions. This has been a robust but courteous debate. Indeed, it brought to mind when the Communist Party of the Soviet Union had its secret conclaves: it always used to issue a statement saying that a meeting had taken place and, “a full and frank discussion had been conducted in a comradely atmosphere”. I felt that that was exactly what we did today. It was a good example of the House dealing with a subject where there are strong feelings and passions on both sides but both sides, while putting their views robustly, also listen courteously. That was helpful to the Government in addressing this and helpful in promoting the broader debate that we would like to see on this issue. Of course, it also helps, as the noble Baroness, Lady Thornton, said, if the fact of this debate gets home to people two sensible pieces of advice: first, make a will; and, secondly, common law protections do not exist.
The noble Baroness, Lady O’Cathain, said that it was only recently that she became aware that the urban myth of the protection of common law marriages was non-existent and I came to that knowledge similarly late in life. I grew up with the understanding that there was such a thing as common law marriage with in-built protections. The introduction of the Bill is extremely important, timely and useful in a process that is under way. We got the right mix between the lawyers and those to whom the noble Baroness, Lady Kennedy, referred as “untainted by law”.
The tenor of the discussion has been about protections for cohabitants, protections for the institution of marriage and a desire to get clarity and understanding in a way that, as the noble Lord, Lord Browne, said, does not add to the complexities of the legal system. My position, almost instinctively, is to want to support proposals by the Law Commission. I am a greater support of its work, and of the new fast-track approach in this House to Law Commission reports. I am equally deferential to any ideas put forward by my noble friend Lord Lester. His track record is such, as the noble Baroness, Lady Kennedy, pointed out, that if he makes a proposal, one should take into account the firm consideration, good research and fierce commitment behind it.
I should, however, make it clear that the Government have concerns about the Bill, and explain why. It is interesting that we had 10 speakers and, if a Division had been called, we would have had a dead heat: there were five speakers on either side. That gives a sense of why the Government are a little cautious, as well the fact that a number of speakers said that perhaps this subject should be part of a more comprehensive and considered approach to these issues.
The Bill addresses two questions. First, what should a cohabitant be entitled to inherit on the death, intestate, of his or her partner? Secondly, when should such a cohabitant be entitled to bring a claim against the estate of his or her deceased partner for financial provision under the Inheritance (Provision for Family and Dependents) Act 1975? Under the law, there may be provisions made for a cohabitant under a will, but there is no provision for cohabitants under the intestacy rule. In many cases, the allocation of property under the will or the intestacy rules will be the end of the matter but, in some circumstances, the surviving cohabitant may be able to make an application to the court for reasonable financial provision under the Inheritance (Provision for Family and Dependents) Act 1975. If this application for family provision, as it is generally known, is successful, the resulting court order overrides the terms of a valid will, if there is one, and similarly overrides the intestacy rules where they apply.
My noble friend’s Inheritance (Cohabitants) Bill would equate the position of some habitants with that of spouse and civil partners under the intestacy rules and improve their position under the 1975 Act. Certain cohabitants would therefore be promoted above blood relations on intestacy. These proposals follow the recommendation of the Law Commission in its 2011 report. The Law Commission explained that it has taken the unusual step of including two Bills in its report, because reform of the intestacy rule in favour of cohabitants is rather different from the rest of the recommendations in that report, which relate to the law of intestacy and family provisions more generally.
The commission said that what is now the subject matter of my noble friend’s Bill is more contentious and more likely to be subject to more intense levels of debate than the remainder of the recommendations. This morning’s debate demonstrates the wisdom of that. The commission also commented that,
“this issue has the potential to be divisive and contentious”.
Again, I think that it got that right.
I am not going to try to pre-empt the Government’s decision in relation to the Law Commission recommendations this morning, but it is clear from the nature and contents of, and issues raised in, the debate that there are significant discussions and examinations about this issue still to go on. The Bill would promote the interests of the surviving cohabitants over those of the children of the deceased on intestacy. A number of noble Lords have raised the issue of the problems that that causes. Putting certain cohabitants on the same footing as spouses and civil partners in relation to intestacy would significantly shift the boundaries of what the average person is deemed to be likely to want to happen with his or her estate.
The Law Commission published its report, Cohabitation: The Financial Consequences of Relationship Breakdown in July 2007. In that report, the commission recommended a statutory scheme to create, as a default position, certain legal rights and obligations for living couples who meet the relevant criteria. The Government announced in September 2011 that they did not intend to take forward the Law Commission recommendations for reform of cohabitation laws in this parliamentary term. Proceeding with the present Bill would separate out the law relating to the ending of a cohabiting relationship during life and on death. This is not to suggest that the law in these situations is perfectly aligned at present, but it will be considerably less so if this Bill is enacted. I am not certain that this will be a good development.
In saying this, I acknowledge the arguments of my noble friend and the Law Commission that the reform relating to the property rights of the cohabitants where a relationship is ended by death are distinct from that and should be considered independently of the commission’s recommendations for the reform of the law relating to the property rights of cohabitants where a relationship is ended by separation. However, there is a reasonable view that the rules relating to the end of a cohabiting relationship by death and by separation should be considered together.
I am second to none in my admiration and support, as I have said, for the Law Commission and my noble friend Lord Lester’s work on these and other issues over the years. I have supported his approach to proposals on many occasions in the past and I am absolutely sure that I will do so in the future. I know that my noble friend and the Law Commission would not propose reforms that are anything other than carefully thought-out and technically correct, and supported by a large body of opinion. I acknowledge that there are cases under the present law where the intestacy rules and the family provision rules may operate harshly against people who would under this Bill be qualifying cohabitants.
However, the reforms we are considering in the Inheritance (Cohabitants) Bill are the legal stuff of everyday life. They would affect a large number of people over many years. Such reforms should be carried forward by as broad a consensus as possible of all reasonably minded people. I am not certain that such a consensus yet exists. Indeed, I think that today’s debate underlines the lack of such a consensus.
I am also mindful that while there are arguments to distinguish between the law’s treatment of living and dead cohabitants, there is at least some merit in viewing the living and the dead as part of a continuum that should be dealt with consistently as a whole, rather than piecemeal, which again was a point made by a number of noble Lords in their contributions. The urgency of the case for reform must surely be diminished by the ease with which cohabitants of all kinds can make provision for one another on death by the relatively simple expedient of making a will.
The Government will reply to the Law Commission’s recommendation in due course and in the usual way, and I am not prejudging that decision today. However, I must make clear at this stage that, while the Government obviously will not oppose Second Reading, we have strong reservations. However, I want to say to my noble friend that, as so often, by raising a debate through a Private Member’s Bill and by attracting the kind of contributions that have been made today, he has taken the debate forward in a very constructive way.
I am in a happy position, which is not always the case when one is summing up and has to look through 27 questions asked of the Minister during the debate. But I kept full notes, which, along with the Hansard record of this debate, will be part of the background against which the Government will ultimately make their decisions on this matter. We obviously will not oppose Second Reading and I look forward to my noble friend’s response.
EU: European Justice and Home Affairs Powers
Lord McNally Excerpts(12 years, 2 months ago)
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The Minister of State, Ministry of Justice (Lord McNally)
My Lords, with the leave of the House, I shall now repeat a Statement made in the other place by my right honourable friend the Home Secretary. The Statement is as follows.
“With permission, Mr Speaker, I would like to make a Statement on European Justice and Home Affairs powers.
Under the terms of the Lisbon treaty, the Government are required to decide by 2014 whether we opt out of, or remain bound by, all those EU police and criminal justice measures adopted prior to the entry into force of the treaty.
The Government are required under the treaty to reach a final decision by 31 May 2014, with that decision taking effect on 1 December. While this may seem a long way off, as with many EU matters the process of decision-making is a complicated one. We wish to ensure that before that point we give this House and the other place sufficient time to consider this important matter.
In total, there are more than 130 measures within the scope of the decision to be considered at this stage. A full list of the measures concerned was provided to the House on 21 December last year, and a further update was given on 18 September this year.
The Government are clear that we do not need to remain bound by all the pre-Lisbon measures. Operational experience shows that some of the pre-Lisbon measures are useful, some are less so and some are now, in fact, entirely defunct. But under the terms of the treaty, the UK cannot pick and choose the measures from which to opt out. We can only opt out en masse and then seek to rejoin the individual measures.
So I can announce today that the Government’s current thinking is that we will opt out of all pre-Lisbon police and criminal justice measures and then negotiate with the Commission and other member states to opt back into those individual measures which it is in our national interest to rejoin. However, discussions are ongoing within government and therefore no formal notification will be given to the Council until we have reached agreement on the measures that we wish to opt back into.
This Government, more than any other before them, have done their utmost to ensure that Parliament has the time to properly scrutinise our decisions relating to the European Union and that its views are taken into account. I can assure the House that the 2014 decision will be no exception. As the Minister for Europe has already told the House, the Government are committed to a vote on this matter in both this House and the other place. We are also committed to consulting the European Affairs, Home Affairs and Justice Select Committees, as well as the European Scrutiny Committee and the European Union Committee, as to the arrangements for this vote.
I fully expect that these committees will want to undertake their own work on this important decision. The Government will take account of the committees’ overall views of the package that the UK should seek to apply to rejoin. So that the Government can do that, I invite the committees to begin work, including gathering evidence, shortly and to provide their recommendations to the Government as soon as possible.
The Government will then aim to bring forward a vote in both Houses of Parliament. The timeframe for this vote will depend on the progress in our discussions with the Commission and Council. An update will be provided to Parliament early in the new year on when we can expect the vote to take place.
I hope that today I have conveyed to the House the Government’s full commitment not only to holding a vote in this House and the other place on the 2014 decision but on the importance we will be according to Parliament in the process leading up to that vote. I am sure that all parties will want to work together to ensure that the final decision is in the UK’s national interests.
It is in the national interest that the Government have taken this decision, and I commend this Statement to the House”.
My Lords, that concludes the Statement.
Lord McNally
I thank the noble Baroness for her response. I suppose I should also thank the Opposition for leaving this measure in the negotiations that they carried out on the Lisbon treaty.
First, on clarity, I do not think there could be a better and clearer declaration of pre-legislative scrutiny—something that I think the House wholly approves of. If I had come here today with a definitive list of measures to be opted into or out of, the House would quite rightly have said, “How can you pre-empt the decision in this way?”. I will borrow the noble Baroness’s phrase: we have put in place a process, not a policy. The process will allow this House, the other place and their committees to look at this matter in a proper, considered way, and to bring forward recommendations that will in turn form the Government’s final decision. That does not sound to me anything like policy on the back of an envelope. It seems a very measured way of looking at matters, and one reason why we are starting early is to make as much progress as possible on these matters so that there is not the gap to which the noble Baroness referred in relation to the opt-out and implementation.
The European arrest warrant is a perfectly good example. No final decision has been taken. The European arrest warrant has had some successes, but there have also been problems, including the disproportionate use of the EAW for trivial offences. As with all the other measures, the point is that it will now be open to scrutiny and consideration by those who have experience of how these things have worked, so that we can make that final decision on these measures in the national interest. As I say, this is one of the clearer Statements I have come across about how a Government intend to develop policy, and one that sets forth for both Houses a process that will give them maximum influence on policy.
Lord Lloyd of Berwick
My Lords, I start by welcoming the fact that the Government are consulting so soon on whether or not to opt out. That seems an entirely good thing. I also welcome the fact that they are consulting the various committees listed in the Statement.
I suggest that those committees, and indeed the Government, could do no better than to start by reading—and, if I may say so, inwardly digesting—a working paper very recently produced by a group of very distinguished academics under the leadership of Professor John Spencer of Cambridge University, entitled Opting Out of EU Criminal Law: What is Actually Involved?. It was the result of much work over the summer and was published only last month. The report starts by disposing of various myths that have surrounded this subject since first it raised its head: in particular, the myth that one can pick and choose what one is going to opt out of. Happily, the Government accept that we simply cannot do that.
However, the Government believe that we can opt out of the whole and then try to negotiate our way back in where it suits us—the so-called Danish solution. But what if we do not succeed? It is quite wrong to suppose that all 130 pre-Lisbon police and criminal justice measures are bad. On the contrary, they are not. We will in any event be bound by all post-Lisbon police and criminal justice measures—that is another myth that is widely believed. So it will be partly one and partly the other. If we opt out, we may in the end get the worst of all possible worlds in deference to the pressure that I think we all understand.
The noble Baroness, Lady Smith, has already referred to the “current thinking” of the Government on this matter being to opt out. I implore the Government to keep their current thinking on this matter under review.
Lord McNally
My Lords, the whole point of the exercise is that the Government can keep their thinking under review and can take on board the kind of evidence and study that the noble and learned Lord referred to. He puts his finger on it entirely. We were faced with the position, as the Lisbon treaty stands, that we could not pick and choose what we opt out of; we can simply opt out and then negotiate on the basis of opting back in. Is that a high-risk strategy? We will take the evidence of the debate that unfolds in both Houses, from the committees of both Houses and from academic, judicial and other advice that we receive. However, I do not think that the Government can be accused of taking an irrational way forward. It seems a very measured way forward that gives us time—the noble and learned Lord welcomed how soon this decision had been made. It is because we are taking this early decision that we are going to be able to make the kind of measured decision in the national interest that I think both Houses will welcome in the end.
Lord Reid of Cardowan
I thank the Minister for repeating the Statement, although I confess that I am not much better informed than I was before it. Will he clarify three things to take us a little bit further in detail, something with which the Statement was not replete? First, during this period when the Government are “minded” to do something—one of those useful words that civil servants taught me—will the present provisions continue to operate until such time as the Government become “minded” to stop things? Secondly, given that law and order is both now an international and transnational phenomenon and among the highest priorities of people in this country, can the Minister tell us whether any impact assessment has been done of the effect of abandoning these regulations on law and order in this country during the interim, between when he becomes minded to do something and the negotiations finish? In particular, has any consultation taken place with the police and the intelligence communities about it? Thirdly, if either has taken place, can he give us a little more detail on the anticipated effects, were such regulations to be abandoned, in particular or wholesale?
Lord McNally
I thank the noble Lord for those questions. I am sure we are going to get this continually. I make the point that the whole merit of this Statement is that it does not present either House with a fait accompli. On the contrary, it offers the House involvement in making these important decisions, which I think would be welcome to the House concerned. That is why this word “minded” is used, because the Government are awaiting advice and having discussions. I cannot imagine that decisions of this importance and magnitude would be taken without the input of those who have responsibility for policing and security matters. They will certainly be involved in giving evidence and advice. However, I am not sure that the process would be helped if Ministers or anybody else dribbled this advice out a little bit at a time. We will get a big picture and all the committees of both Houses will have the opportunity to take advice from a wide range of bodies. We will see that advice emerging when they have had the opportunity to give it.
Baroness Hamwee
My Lords, does my noble friend agree that it is fundamental to the EU that there is freedom of movement and, that being so, that we need the tools to deal with negative consequences, when there are negative consequences? If that is so, will he give the House an assurance that the Government’s decisions will be based on evidence and informed opinion—of which there is quite a lot—because the Statement is not neutral? Does my noble friend further agree that playing hard to get is not always the best way to progress a relationship?
Lord McNally
I shall not go there. Instead, I assure my noble friend that the invitation before the House, and indeed the country, is to let us make these very important decisions on the basis of evidence and informed opinion. I am very confident that if we approach this on the basis of evidence and informed opinion we will make the right decisions for the country.
Lord Baker of Dorking
My Lords, I was the Home Secretary at the time of the Maastricht arrangements. Let me remind your Lordships of what Maastricht did. It said that matters of criminal justice and police powers should remain matters for independent states within Europe. In fact, John Major described it on coming back from Maastricht as one of the great independent pillars of that settlement. That independence has been eroded over the years by the natural effluxion of powers to the centre, which is remorseless in the case of Europe. Therefore, I very much welcome the statement that we will resile from undertakings and then pick and choose which we think are advantageous to our country. This seems to be an excellent exercise in subsidiarity and may well be the shape of things to come.
Lord McNally
I thank the noble Lord, Lord Baker, for that intervention. I think he would agree that things have moved on from Maastricht, not least in a matter that I think the noble Lord, Lord Reid, referred to—that many of the challenges that we face in these areas are transnational and international. That is why, while looking at the issues with an eye to subsidiarity and the responsibilities of the nation states, we also have to look at them from the realities of the much more international, transnational and global operation of many of the criminal forces that we are trying to counteract. That is why I rely on proper evidence-based examination of the decisions that we are taking forward.
Lord Hannay of Chiswick
My Lords, does the Minister recognise that the thanks for the Statement today would be a great deal more sincere if it was not such a sham? It is a sham because the Prime Minister has stated categorically that he will opt out—no ifs and buts and nothing about reinserting those measures we choose. He has ridden roughshod over the undertakings that were given in this House by the noble Lord, Lord Henley, and in the other place by the Minister for Europe that before the Government came to any conclusions at all on this matter they would consult very fully. The warm words he said about consultation today are, frankly, not very comforting. I can only repeat the words of the chairman of the EU Select Committee of this House, the noble Lord, Lord Boswell, when he wrote to the Home Secretary after the Prime Minister’s statement expressing his dismay. Does the noble Lord agree that it would be completely unthinkable to put the matter for decision to the two Houses until we are absolutely clear what the whole of the reinsertion or reapplication package is? We will not be able to judge what the consequences of the Government’s actions are unless we know not only that they are going to opt but what they are going to opt back into.
Lord McNally
The noble Lord is being unduly cynical about the approach being taken—or let us say pessimistic. When the Home Secretary of the day makes a considered Statement of government policy and I repeat it from this Dispatch Box in this House, we are asking noble Lords and Members in the other place to believe that the Government have not made a final decision on this matter. They have adopted a process which will enable us properly to look at the issues before us. I take note of the noble Lord’s point that the opt-out/opt-in decision is part of a single picture, and I shall certainly draw my colleagues’ attention to the fact that somebody with his long experience of negotiations of this kind is giving what I consider to be wise advice.
Lord Wood of Anfield
My Lords, in the event that we opt out and then persuade 26 other EU countries of the importance of us opting back in on an individual item, would the act of opting back in trigger a referendum under the Government’s own legislation?
Baroness Williams of Crosby
My Lords, can my noble friend assure the House that, in the event that the United Kingdom Government decide to pursue certain elements to opt back into, we would know in advance that the other 26 countries would be willing to negotiate on that basis? It is crucial, if we are going to opt back in, that we have reason to believe that we will be heard and that those issues will be negotiated. Does my noble friend agree that it was under the European arrest warrant that, among other people, one of those who perpetrated the 7 July atrocities was arrested? Will he also assure and remind the House that Europol was at a very advanced position in breaking the dangerous international paedophile ring that until last year operated throughout the whole of Europe?
Lord McNally
My Lords, the European arrest warrant and other measures of European co-operation stand very clearly as benefits to us—my noble friend cited two examples. That will be part of the debate that is unfolding. One of the reasons for our wanting to make the Statement today, which, as I have said, it would have been possible to delay by another year, was to start engaging in exactly the kind of discussions that my noble friend referred to. On both a bilateral basis and with the Council and the Commission, we will explore the very areas that will give us and both Houses a clear indication of prospects for success.
Lord Williamson of Horton
My Lords, I do not think that this is a high-risk strategy as has been suggested by others. We negotiated in the Lisbon treaty the right, if we so decided before the end of May 2014, to opt out en masse of the EU police and criminal justice measures adopted before the entry into force of the treaty. As for the treaty, it is a case of all in or all out. That is what the treaty says. It is the consequences that we are talking about now. The Government have, as I understand it, now decided to opt out. Of course, it is possible to opt in for other individual measures, but does not the Minister agree that one problem there is that the practical consequences of some of these measures are still rather difficult to foresee, because we are talking about a moving target? That is a serious point, but I welcome the Government’s intention to scrutinise the possibilities very carefully, to give Parliament the time to carry out the scrutiny, particularly in this House, and to require a vote in both Houses of Parliament. That is the right way to go and the British public deserve no less.
Lord McNally
My Lords, I welcome from such an experienced source the opinion that this is not a high-risk strategy. As I have acknowledged, there is a danger in taking the opt-out route, but the treaty left us no option other than to stay in en bloc or to adopt this strategy of opting out and then negotiating back in. By adopting a good timescale and involving committees of both Houses, we will have the opportunity to take both external advice and the political opinion of both Houses to keep track of the individual measures and look at the exactly the kind of consequences and movements that the noble Lord referred to. It is certainly not a political ploy, as has been suggested; rather, it is a political opportunity. It may be seen as a political opportunity for Eurosceptics. I urge those who have a belief in the European process and the benefits of European co-operation to use this exercise to argue their case strongly in both Houses and with the intention of a getting a final decision which is truly in the national interest.
Official Secrets Act 1989 (Prescription) (Amendment) Order 2012
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Lord McNally
That the draft Official Secrets Act 1989 (Prescription) (Amendment) Order 2012 be referred to a Grand Committee.
Defamation Bill
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The Minister of State, Ministry of Justice (Lord McNally)
My Lords, first, I welcome the noble Lord, Lord Browne, as the lead opposition spokesman on the Bill. I look forward to working with him and with the noble Baroness, Lady Hayter, on it. I also welcome the noble Lord, Lord Ahmad, as my chief aide. He has taken over in the Ministry of Justice from the noble Baroness, Lady Verma, who used to placate me on the Front Bench from time to time and to help me through Bills. I should, perhaps, put on the record that I hope that the noble Lord, Lord Ahmad, will provide a link with Members in all parts of the House—not only on this Bill but on MoJ business in general. I look forward to working with him.
I am delighted to open this debate today as the Defamation Bill begins its passage through the House. The Bill fulfils the commitment in the coalition agreement to review the law of libel to protect legitimate free speech. I would like to begin by thanking those in the other place for their work on the Bill so far—in particular my right honourable friend the Secretary of State for Justice and Lord Chancellor, Chris Grayling, and his predecessor Kenneth Clarke. I also thank the Ministers, old and new, in my department who have assisted in steering the Bill through the other place. However, I consider that today the Bill has come home. Indeed, it was in this place that my noble friend Lord Lester of Herne Hill produced a Private Member’s Bill on this subject back in 2010. I would like to take this opportunity to place on record my enormous thanks to my noble friend Lord Lester, and to his expert team of Heather Rogers QC and Sir Brian Neill, for their advice and assistance to me and to the Ministry of Justice in helping us to develop the provisions that are contained in the Bill here today.
However, my vote of thanks does not stop there. The Defamation Bill was published in draft in the first Session of this Parliament for full public consultation and pre-legislative scrutiny. The Joint Committee of Parliament that was established to undertake that scrutiny was expertly chaired by my noble friend Lord Mawhinney. I am grateful to him and his colleagues on the committee for their very careful consideration of the issues and for their extremely detailed and helpful report. I have also made it part of my responsibilities to engage in discussions with a wide range of interests outside Parliament who have brought this issue to the forefront of public debate, many of whom have provided briefings to this House in advance of today’s debate. It would be remiss of me not to extend my thanks also to the many groups and individuals that responded to our public consultation on the draft Bill.
This Bill was built on a Private Member’s Bill, followed by consultation, pre-legislative scrutiny, a draft Bill and consideration in the other place. It is not a Bill that divides us on party lines. Indeed, I have made no secret of the fact that my intention in bringing this Bill before Parliament has always been to end up with legislation that works. I believe that it is timely because of the mounting concern in recent years that our defamation laws are out of date, costly and over-complicated. They give us the worst of all worlds by damaging freedom of speech without affording proper protection to those who are defamed.
Freedom of expression is the cornerstone of our democracy. In an open society, people should be at liberty to debate a subject without fear or favour, whether the matter is political, scientific, academic, religious or anything else. That is how power is held to account, abuses of authority uncovered and truth advanced. However, freedom of speech does not mean that people should be able to ride roughshod over the reputations of others without regard to the facts. Careers and indeed lives can be destroyed by false allegations that are incapable of properly being answered. The issue for our defamation laws is ultimately one of striking the right balance between protection of freedom of expression on the one hand and protection of reputation on the other.
The law as it stands has allowed a situation to develop where the threat of lengthy and costly proceedings has sometimes been used to frustrate robust scientific and academic debate, to impede responsible investigative journalism and to undermine the good work undertaken by many NGOs. Nor can it be a matter of pride when powerful interests overseas with tenuous connections to this country use the threat of British libel laws to suppress criticism as part of so-called libel tourism.
It is also a fact that our current libel regime is not well suited to the internet. Legitimate criticism sometimes goes unheard because website operators, as providers of the platforms on which vast amounts of information are published, often choose simply to remove material which is complained of rather than risk proceedings being brought against them. Meanwhile, individuals can be the subject of scurrilous rumour and allegation on the web without meaningful remedy against the people responsible.
We need to refocus and modernise our law on defamation so that it offers effective protection, whether offline or online, for both freedom of speech and the reputation of those who have been defamed. It is my hope that the Bill will do that, but I am well aware that this is new territory for legislation.
I now turn to the detail of the Bill. I see it as a first priority to ensure that the law is reformed so that trivial and unfounded actions for defamation do not succeed and indeed are discouraged from being started. Clause 1 therefore raises the bar for a statement to be defamatory by proposing that it must have caused or be likely to cause serious harm to the reputation of the claimant. Where the draft Bill sought views on a test of “substantial harm”, which was intended to reflect current law, the new clause draws on the views of the Joint Committee on the draft Bill and the balance of opinions received in consultation by nudging up this threshold. Our intention is to give more confidence to defendants such as those in some of the cases brought against NGOs and scientists in recent years.
Alongside a stronger test, we also want to simplify and clarify the defences available to those accused of libel. As they stand, they are unnecessarily complicated and too narrowly focused on cases relating to mainstream journalism rather than the online world, NGOs, academics, scientists and so forth.
The Bill also clarifies that qualified privilege extends to reports of scientific and academic conferences. In a further important step forward for the protection of scientists and academics, Clause 6 creates a defence of qualified privilege for peer-reviewed material in scientific and academic journals—again, as recommended by the Joint Committee.
There are also provisions seeking to address libel tourism, which has damaged this country’s reputation around the world as an advocate of freedom. Although relatively few foreign libel cases ultimately end up in British court rooms, I am concerned about the use of threatened proceedings by wealthy foreigners and public figures to stifle investigation and reporting. Clause 9 of the Bill addresses the issue in a measured and proportionate way while avoiding any conflict with European law. It clarifies that a court will not hear a case against someone who is not domiciled in the UK, another EU member state, or a state which is a party to the Lugano Convention unless satisfied that England and Wales is clearly the most appropriate place to bring the action. It should help to ensure that powerful interests around the world will not easily be able to use British justice to gag their critics, which is a move that I hope will be welcome across the House.
In addition to protecting freedom of expression and reputation, the Bill seeks to modernise the law. Currently, website operators are at risk of action for the content of material that they may host, even if they do not control the content. Most operators are not in a position to know whether the material posted is defamatory or not and very often, faced with a complaint, will immediately remove material rather than face the possibility of defamation proceedings, however real or remote that possibility may be. That leads to an unnecessarily chilling effect on free speech.
The Government want a libel regime for the internet that makes it possible for people to protect their reputations effectively but also ensures that information online cannot be easily censored by casual threats of litigation against website operators. Clause 5 of the Bill sets out a framework for how we wish to achieve this.
As your Lordships know, technology develops apace, and rather quicker than primary legislation. Had we sought to specify the detail of the system that we propose for the internet, we would have risked it being out of date before noble Lords had concluded their considerations. Rather, we propose that much of the detail will be set out in regulations. We will be seeking views on the content of these regulations by the end of the year.
The Bill will make significant changes to the law of defamation—changes that I would argue are very much for the better. However, they should not be seen in isolation. As I have already mentioned, one of the biggest areas of concern in relation to defamation proceedings centres on the costs involved. As the House will recall, earlier this year we had some debates about the costs and funding provisions on what is now the Legal Aid, Sentencing and Punishment of Offenders Act. Part 2 of that Act reforms no-win no-fee conditional fee agreements, or CFAs, to reduce costs and to make them fairer as between claimants and defendants. Those provisions come into effect in April next year, including for defamation and privacy cases. During those debates, particular concerns were raised by a number of noble Lords—the noble Lords, Lord Martin and Lord Prescott, and others—about the effect of our reforms on less well off parties. At that time, I acknowledged those concerns, and I gave a commitment to look at the rules on costs protection for defamation and privacy claims in preparation for when the defamation reforms come into effect.
I have asked the Civil Justice Council to help us on costs protection for defamation and privacy claims by looking at the case for it and options for reform. The council is an advisory body chaired by the Master of the Rolls. I have asked him to report by the end of March 2013. That will allow us to make, if appropriate, any rule changes in time for the Defamation Bill coming into effect.
In addition to the issues on costs, we are developing a new procedure to resolve key preliminary issues at as early a stage as possible, which was something that I know was of great interest to the Joint Committee. Currently, cases can drag on for too long before they reach full trial and that can lead to costs being built up unnecessarily. Getting early resolution of key issues often leads to early settlements. The Government are keen to encourage that. The Government are grateful to the Joint Committee for its recommendations, including those on the use of alternative dispute resolution in defamation cases. However, when looking at procedural reform, we need to be aware of the wider context, and recommendations that impact on this area may come out of Lord Justice Leveson’s report.
While I believe that it is important to wait for the outcome of the Leveson inquiry with respect to the procedural aspects of defamation reform, I am clear that we should not allow that process to impact on the content—or indeed the timescale—of our reforms to the substantive law contained in this Defamation Bill. Leveson is largely focused on issues other than defamation and should not be used as an excuse to delay this Bill. Opportunities to get this area of law right do not come along too often. There was a Defamation Act in 1952 and another in 1996. This is the first opportunity we have had to consider the law in Parliament since the explosion of the internet age and we might wait a long time for another chance. What is more—and with perhaps uncharacteristic modesty—the other place has left scope for this House to apply its expertise to this Bill. My approach has been to listen and apply the dictum of the late President Truman, “Spread a little of the credit and you will be surprised how far you can go”.
In another place, my ministerial colleagues at the Ministry of Justice made it clear that there is one area of the Bill in particular where we are reflecting in the light of the views we receive. This is in the area of the defence of responsible publication on a matter of public interest, contained within Clause 4 of the Bill. I am sure there will be more views forthcoming on that clause during the debate. I will be sure to take note of them and we look forward to further discussions on Clause 4 in Committee.
I believe that the package of measures contained in this Bill meets our aim of rebalancing the law in a fair and effective way, so that free speech is not unjustifiably impeded and so that debate on issues of public importance is able to thrive, while still providing appropriate remedies for those who have been defamed. It is a sound, reforming Bill and one that I hope can command cross-party support. I genuinely look forward to working with all parts of the House to bring forward a Bill of which we can be justly proud. In commencing our work, perhaps we should take on board the warning contained in the editorial in today’s Guardian, which says that,
“weighing free expression against protection of reputation is art as much as science”.
Fortunately, we have an abundant supply of both artists and scientists in this House. I commend the Bill to the House.
Lord McNally
My Lords, in opening the debate I said that I was looking for help in carrying the Bill forward. The tenor and content of the debate have lived up to my expectations. We also have the confidence of the other place, which knowingly passed us a good deal of work. Usually we complain that it does this without acknowledging it. At least this time it does and I hope that we can carry forward these discussions in Committee in a way that will produce the better Bill to which the noble Baroness, Lady Hayter, referred.
I acknowledge what the noble Baroness and others have said: that in many parts this is a consolidation Bill, aimed at clarifying the law and putting it into a place where people can clearly understand it. My intention has always been that, where necessary, we should take the law forward. In particular, as has been referred to, we are setting ourselves a pretty fierce challenge where the internet is concerned because of the speed of change. However, we should not duck away from it simply because we face rapidly changing technologies.
It is also good that there were voices in this debate that were not simply politically correct. It would have been very easy to say that we are all in favour of free speech and that it is very good, but the contributions of the noble Lords, Lord Sugar and Lord Triesman, and my noble friend Lord Phillips were important in saying that this Bill seeks a balance between the freedom of speech and the rights of journalists to pursue the truth and the rights of individuals to protect their reputation and in some circumstances their privacy. This debate had the necessary balance, which takes us forward to Committee.
On the question of defending the rights of business, the noble Baroness is right; this was raised in the Committee and I gave an opinion then. The Government’s considered view is that businesses have reputations that can be defamed and damaged and that they have a right to defend their reputations. There has been no great bullying by big business—the noble Baroness is getting into conspiracy theories. However, we can look at this in Committee. She also talks about the various organisations trying to hold business to account that can be bullied. Over the months that I have been working on this, I have heard enough hearsay evidence about the willingness to fire off lawyers’ letters and rack up costs or implied costs. I hope that some of the things that we are doing—the threshold and the reform of defence, particularly the public interest defence—address this.
Something that has also come up time and again in debates, which we will look at, is the cost issue and case management. I shall go back to the Ministry of Justice to find out how speedily we can respond, but I understand that when the House goes into Committee it will want information about some of the issues that we have said, quite rightly, that we want to manage by secondary legislation or by consultations with the judiciary. However, I also take the point that we need to give the House as early as possible the thinking and direction of travel in which we want to go in these areas. I take on board what the noble Lord, Lord Browne, asked me at the beginning: whether we would be able to publish some kind of timetable for bringing forward this further information. I will do my best.
When so much is to be discussed in Committee, I hope that colleagues will understand that summing up like this and dealing with the detail of some of the questions would probably run for about an hour. Here are the notes that my officials in the Box sent me to answer detailed questions. I also made 25 separate notes myself. I can try doing so if noble Lords want, but what I have taken out of this is that we have certainly got a number of things right, which people have welcomed. I notice the point that the noble Viscount, Lord Colville, made: that the Reynolds defence is too restrictive. That is partly why we have invited more comment. It is admitted that the clause that we have put forward will need further work. That is what I look to do in Committee, and I hope that this work will avoid the kind of back-street bullies that he described. We will also look at Clause 4, certainly in the light of the Flood judgment but also after a number of other comments made during the course of this debate.
There was interest during the debate—we shall probably discuss this further—about where to get satisfaction in these cases. A number of speakers referred to the wisdom of making sure that judges can order suitable corrections. Others warned us against putting judges in the editor’s seat. It is part of the nature of this debate that we have those differences. I was grateful for the kind comments of the noble Lord, Lord Mawhinney. I did not know that “serious and substantial” was the contribution of the noble and learned Lord, Lord Mackay. I always take very seriously anything suggested by the noble and learned Lord. A number of other people have given warnings. When we come to Clause 4 we shall look at this difference between those who want some guidance for those looking at the law and those who want to avoid a tick box. Again we can explore the best that we can get between ticking boxes and giving guidance.
A variety of people have commented on costs. I take them all on board. It was interesting that a number of speakers—the noble Lord, Lord Mawhinney, among them—referred to the case for putting arbitration and mediation into the process. This is a great desire, but how we do it, I am not quite sure. On some of this we may have to wait to hear what Lord Leveson is going to say. However, this Bill is not just newspaper-specific, of course, and I was very interested in the comments on the way in which arbitration is being offered on the internet. I take the point made by the noble Lord, Lord Lester, that we should not get blown off course by Leveson. We can deal with defamation without that being a cause for delay.
I am extremely grateful to the noble Baroness, Lady O’Neill, and indeed to all the scientists who contributed. One of my driving motivations has been to try to get something that would deal with the undoubted problems that scientists, academics and others face. The noble Baroness, Lady O’Neill, was realistic enough to realise that these are complex issues. As she said, this is the central piece in the jigsaw of legislation. I was pleased by the favourable comments of the noble Lord, Lord Bew. We are trying to provide legislation that gives genuine protection to the scientific community, and I look forward to working in Committee. If there are improvements that give that protection, we will certainly look at them.
The noble and learned Lord, Lord Morris, gave us the wise guidance again that, while protecting freedom of speech, we have to give adequate protection for reputation. He advised me to bring forward the promised regulations as soon as possible. I was interested as well that the general opinion was that we had got it right as far as jury trial was concerned. That is extremely welcome. The noble and learned Lord, Lord Morris, asked me whether there was any insidious read-across to criminal trials. Unless they are not telling me something, and unless he gets an urgent letter from me tomorrow morning, the noble and learned Lord can take this as an assurance from the Dispatch Box that there is no read-across to intentions about jury trials. The noble and learned Lord, Lord Morris, himself made the point that, with the internet, we must put flexibility into this legislation. I remember that when we debated the Communications Data Bill we kept on talking about “future-proofing”—much good that it did us. Future-proofing may be impossible in the modern technological age, but we can build in flexibility.
I much appreciated the contribution from the noble Lord, Lord Black, about the serious-harm test being good, and his comments that the Clause 8 single-publication rule is much needed but perhaps should be clarified.
I should perhaps say to the noble and learned Lord, Lord Lloyd, that I have conflicting advice on his point about Lord Ackner’s judgment. My officials have sent me a note saying that we will look at this and write to him, but the noble Lord, Lord Lester, passed me a note saying that of course we got it right. One of my great feelings of loss about this House is that Lord Ackner is not here, ready to tear whichever Minister happened to be at the Dispatch Box to small pieces with his analysis of the legislation. My view is that the noble Lord, Lord Lester, is probably right and that Lord Ackner got it right. We hope that we have got it right in this legislation.
The spirit of the debate, from the response of the noble Lord, Lord Browne, to the closing speech of the noble Baroness, Lady Hayter, reflects that we have been given a serious task to do and that this House will now set about that task. Once every so often—this time after 16 years—the House gets a chance to look at this very important area of law and we intend to do our job responsibly, seriously and with due pace.
I was not sure whether this had been agreed by the usual channels, but I think that the Bill has been moved to Grand Committee, which will be very useful for doing the work that we have set ourselves.